DISTRICT CONSTRUCTION ENGINEER PANEL DISCUSSION Contract Management: Claim Avoidance and Handling Keith Compton, P.E. District 5 Construction Engineer Basin Ted Wells, P.E. District 3 Construction Engineer Rock Springs

Claim Avoidance and Handling

Role of the DCE  Provide guidance to RE with regard to potential dispute situations.  Pre-Construction (Plan Development)  During construction (Contract Admin) Ensure accurate understanding of plans and specs  Provide guidance and support in analyzing a claim  Do we have a clear understanding of what the dispute is  Can entitlement be shown  Ensure an objective viewpoint  Assess the strength of our position  Ensure consistency across the district and state Consider effects of a decision

Claim Avoidance Quality Plans and Specifications  Checking the plans. Make sure to thoroughly review the plans.  All work is adequately called out and paid for. (Ensure is clearly understood and reflected in the contract)  Summaries are clear and concise  Quantities are accurate  Project is constructible  Reviewing Special Provisions  Are they understandable?  Are they reasonable?  Do they put undo responsibility on the Contractor?  Check for ambiguities or conflicts in the contract

Claims Avoidance: Pre-Construction zJob Showing y Be careful how we show our jobs y Stick to the contract, do not speculate or give opinions y Establish job showing notes and do not stray from them y Access issues to determine the need for an addendum zBid Tabs yReview bid tabs against other contractor bids yAny individual items that are sig different? zKnow the Plans and Specifications yEnsure a review of the project requirements and inspection needs prior to start of work yDo not rely on your memory

Claim Avoidance Communicate  Often on both the Good and the Bad  Always go through the Prime  Be fair, firm and consistent  Be careful what you do say or don’t say  Do not direct the means and methods  Do not allow out of specification work to continue  Written over (Remember your like your diaries are public information and are open to discovery)

Project Prosecution and Progress Schedule Review & Contract Time  Ensure requirements outlined in are met (ie. incl. quant & production rates for critical activities)  Accept or reject the schedule ( ), don’t Approve!  Request Schedule Updates  Withhold payment until you receive a new schedule  Why is this important?  Good schedule may avoid dispute or assist in resolution  Contractor is required to substantiate a request to ext the completion date with a project schedule in accord to  Initial schedule should be a reasonable indication on how contractor bid the project  Watch for added work without adding time  Could set up for an acceleration claim (more resources to do same work) add time also to the contract up front

Claims Avoidance: Construction Document  Agreements  Follow up with letter and/or E-61 as required  Disagreements  Will the situation escalate?  Does the disagreement need to be more formally pursued in ?  Decisions made on the project  Daily Note  Working labor force  Equipment (Both working and idle)  Note time work started and completed  Work being performed and where  Problems encountered and who was informed

Project Prosecution and Progress Inspection  Know authority w/in the specifications  105.1, Authority of the Engineer  , Authority of the Inspector  , Inspection of the Work  Be proactive  Advise the Contractor when quality of work is poor or does not meet specifications.  It is not just a numbers game. Is the work obviously defective (Ref 113.3)  Force the Issue and get the work corrected  Do Not stand by a let poor quality or out specification work continue and tell the Contractor to remove it after you watch it be put in  Document!!!!

Contractor – Engineer Notification Sets forth criteria that must be followed when the Engineer considers a request for a Contract Amendment When to use this specification?  Per spec, only consider contract amend when followed Intent is to identify and resolve issues quickly  Avoid dealing w issues “after the fact”  Establish best way to mitigate impacts and, if appropriate, pay for changed work Ensure information outlined in is received Meet with the contractor to ensure a clear understanding of the issue Within Ten Days of written notification by the Contractor, either accept or deny the request or request additional information. Additional information.  Ensure you have ALL the information you need to make a decision  Be clear what information you need and by when.  More than one request may be necessary

Contractor –Engineer Notification Ensure that it is understood that there are 3 methods of payment for extra work  Existing bid items, negotiated price, or FA  If an agreement cannot be reached, FA is the only option Issue final response within Ten Days after receipt of this information  Make sure to reference in the letter that this is the Final Written Response according to

Claims Handling: Evaluation of the Dispute Entitlement, based on the contract is the contractor due compensation  Differing Site Condition ( )  Significant Changes in the Character of Work ( ) Impacts, to what degree was the contractor operations, schedule effected  What exactly is the contractor asking for? Is there a bottom dollar?  Cost – how much is the contractor owed. Need to look at only what has changed from original bid, not “cost +”  Delay – Need to be able to substantiate with schedule(s)

Claims Handling: Evaluation of the Dispute Do we have a clear understanding and/or interpretation of the contract in regard to the issue?  Is the contract clear?  Do we need to tap other areas within the Dept for expertise? To determine or decide the above, it is critical that all pertinent information was included in the claim package and evaluated by the RE The Decision  Consider the strength and defend ability of the RE Decision based on WYDOT documentation.  Will the decision set precedent or has it already been set in this District or elsewhere in the State?

Dispute Resolution Notification – The Contractor must notify the Engineer within five days of receipt of the Engineer’s final response to the request for a contract amendment.  Must be sent Certified Mail  Must clearly state the activity or item of disputed and the reason for the continued disagreement.

Dispute Resolution Upon receipt of this notice, the Engineer can direct the Contractor to continue the disputed work  Force Account records will be kept on this work.

Supporting Documentation Within Thirty Calendar Days, the Contractor must send to the Engineer complete documentation supporting the requested contract amendment by Certified Mail “Return Receipt Requested.”  Data to be included:  1. Copies of all previous correspondence related to the disputed work  2. Data and information used to assemble bid, if relevant to dispute  3. Schedules and updates, if time delays are relevant to dispute  4. Documents similar in nature to those used to substantive payments for extra work.  5. Supporting actual cost records  6. Accounting records and statement, if overhead is relevant  Compare to the Dispute filed in 104  Is it the same dispute?  Is the same rationale to show entitlement being pursued?

Supporting Documentation Ensure that Submission of Certification of documentation statement is included The undersigned is duly authorized to certify the enclosed documentation on behalf of (the Contractor). (The contractor) certifies that the documentation is submitted in good faith, that the information provided Is accurate and complete to the best of (the contractor’s) knowledge and belief, and that the monetary amount requested accurately reflects the contract amendment for which (the contractor) believes the department is responsible. (THE CONTRACTOR) By: _____________________ (Name and Title) Date: ____________________

Engineer Response Thirty Days after receipt of the supporting data, the Engineer will submit his decision by Certified Mail. This response must include all documentation not provided in the Contractor’s package.  Ensure RE response and supporting documentation for analysis of the claim is included Submission of additional information at any subsequent level of review is not allowed after the Engineer Decision.  Ensure the claim package is organized and complete.  Remember the basis for subsequent decisions may be based solely on the information provided.

Appeal to District Engineer Within Thirty Days of receipt the Engineer’s Decision the Contractor must notify the District Engineer by certified mail that the Engineer decision is unacceptable.

Thank You and Questions/Discussion