Оглавление
William J. McConnell. Fundamentals of Construction Claims
Table of Contents
List of Tables
List of Illustrations
Guide
Pages
Fundamentals of Construction Claims. A 9-Step Guide for General Contractors, Subcontractors, Architects, Engineers, and Owners
Acknowledgments
1 Introduction
I. Step 1: Review the Dispute Resolution Procedure
II. Step 2: Define the Type of Dispute
III. Step 3: Fulfill Pre-Claim Requirements and Notice Requirements
IV. Step 4: Establish Entitlement
V. Step 5: Calculate Delay
VI. Step 6: Calculate Damages
VII. Step 7: Formatting and Packaging the Claim
VIII. Step 8: Non-Binding Dispute Resolution
IX. Step 9: Binding Dispute Resolution
X. Other Topics
A. Termination Claims
B. Non-Contract Claims
C. Fault Allocation
XI. Summary
2 Step 1: Review the Dispute Resolution Procedure
I. Standard Contract Forms for Owner–Contractor Agreements
A. AIA A201 General Conditions, Article 15, Claims and Disputes
B. ConsensusDocs 200, Standard Agreement and General Conditions Between Owner and Constructor
C. C-700, Standard General Conditions of the Construction Contract (2018 Version)
D. Proprietary Contract Dispute Resolution Provisions for Owner–Contractor Agreements
1. Federal Projects Dispute Resolution Provisions for Owner–Contractor Disputes
2. Example State Agency Contract Dispute Resolution Provisions for Owner–Contractor Disputes
II. Standard Contract Forms for Contractor–Subcontractor Agreements
A. AIA A401, Article 6, Claims and Disputes
B. ConsensusDocs 750, Standard Agreement Between Constructor and Subcontractor
C. EJCDC E-523, Construction Subcontract Agreement (2018 Version)
III. Standard Contract Forms for Owner–Designer Agreements
A. AIA B101, Article 8, Claims and Disputes
B. ConsensusDocs 240, Standard Agreement Between Owner and Design Professional
C. EJCDC E-500, Agreement Between Owner and Engineer for Professional Services (2020 Version)
IV. Standard Purchase Order Forms for Purchaser–Vendor Agreements
A. AIA A152 and A152 Exhibit A, Article 8, Claims and Disputes
B. ConsensusDocs 702 and 703, Purchase Orders
V. Summary
Notes
3 Step 2: Define the Type of Dispute
A. Design Issues
B. Administration Issues
C. Performance Issues
D. Third-Party Issues
E. Change Order Negotiation Issues
Summary
4 Step 3: Fulfill Pre-Claim Requirements and Notice Requirements
I. Pre-Claim Requirements
A. Design Issues. 1. Differing Site Conditions
2. Other Design Issues
B. Administration Issues. 1. Submittal Issues
2. Other Administrative Issues
C. Performance Issues. 1. Claim for Negligent Acts or Omissions by the Owner that Cause Injury or Damage to the Contractor
2. Other Owner Performance Issues
D. Third-Party Issues
E. Change Order Negotiation Issues
II. Claim Notice Provisions
A. Notice of Claim Provisions for General Claim Items
1. AIA A201 General Conditions
Sample Notice Letter that Conforms to the AIA A201
2. ConsensusDocs 200
Sample Notice Letter that Conforms to the ConsensusDocs 200
3. EJCDC C-700 General Conditions
Sample Claim Cover Letter that Conforms to the EJCDC C-700
B. Notice of Claim Provisions for Lack of Evidence of Owner's Financial Arrangements
1. AIA A201 General Conditions
Sample Request for Proof of Funding Letter that Conforms to the AIA A201
2. ConsensusDocs 200
Sample Request for Proof of Funding Letter that Conforms to the ConsensusDocs 200
3. EJCDC C-700 General Conditions
Sample Request for Proof of Funding Letter that Conforms to the EJCDC C-700
C. Notice of Claim Provisions for the Owner's Failure to Make Timely Payment to the Contractor
1. AIA A201 General Conditions
Seven-Day Stop Work Notice per the AIA A201
2. ConsensusDocs 200
Seven-Day Stop Work Notice per the ConsensusDocs 200
3. EJCDC C-700 General Conditions
Seven-Day Stop Work Notice per the EJCDC C-700
D. Notice of Termination Provisions by the Contractor to the Owner
1. AIA A201 General Conditions
Notice of Contractor Termination of Owner per the AIA A201
2. ConsensusDocs 200
Notice of Contractor Termination of Owner per the ConsensusDocs 200
3. EJCDC C-700 General Conditions
Notice of Contractor Termination of Owner per the EJCDC C-700
5 Step 4: Establish Entitlement. I. Introduction
II. Typical Contractor Claims Against Owners
A. Owner Design Issues
1. Differing Site Condition Claims
2. Design Additions/Design Changes
B. Administration Issues
C. Owner Performance Issues
D. Force Majeure Issues
E. Change Order Negotiation Issues
III. Typical Owner Claims Against Contractors
A. Quality Issues
B. Schedule Issues
C. Administrative Issues
D. Contractor Design Issues
E. Contractor Impacts on Owner or Owner's Separate Contractors
F. Change Order Negotiation Issues
IV. Typical Subcontractor Claims Against Contractors
A. Design Issues
B. Administrative Issues
C. Owner or Contractor Performance Issues
D. Force Majeure Issues
E. Change Order Negotiation Issues
V. Typical Contractor Claims Against Subcontractors
A. Quality Issues
B. Schedule Issues
C. Subcontractor Administrative Issues
D. Subcontractor Design Issues
E. Subcontractor-Caused Interference
F. Change Order Negotiation Issues
VI. Typical Designer Claims Against Owners
A. Designer Claim Against Owner for Additional Services Due to Owner's Change in Work Program
B. Designer Claim Against Owner for Additional Services Due to Contractor Delays
C. Designer Claim Against Owner for Additional Services Due to Contractor Maladministration
VII. Typical Owner Claims Against Designers
A. Claim for Design Error or Design Omission
B. Owner Claim for Designer Maladministration
C. Owner Claim for Design Delays
VIII. Summary
Note
6 Step 5: Calculate Delay
I. Contract Requirements for Time Extension Requests
II. Scheduling Overview
III. Types of Delays
IV. Concurrent Delays
V. Pacing Delays
VI. Review of Forensic Scheduling Methodologies
A. As-Planned vs. As-Built Analysis (Retrospective, Backward-Looking)
Example – As-Planned vs. As-Built Analysis
B. Windows Analysis (Retrospective, Forward-Looking)
Example – Windows Analysis
Window 1 above Month 1
Window 2 above Month 2 [No Delays]
Window 3 above Month 3
Window 4 above Month 4 [No Delays]
Window 5 above Month 5
Overall Impact
C. Time Impact Analysis (TIA) (Prospective or Retrospective, Forward-Looking)
Example – Time Impact Analysis
D. Collapsed As-Built Analysis (Retrospective, Backward-Looking)
Example – Collapsed As-Built Analysis
VII. Summary
Notes
7 Step 6: Calculate Damages
I. Methods to Calculate Damages. A. Actual Cost Method
B. Agreed Upon Cost Method
C. Estimated Cost Method
1. Subcontractor/Vendor Estimates
2. Cost Estimating
a. Quantity Takeoffs
b. Unit Cost Pricing for Direct Costs
3. Industry Studies and Scholarly Research Papers
4. Measured Mile Analysis
5. Earned Value Analysis
6. Comparable Project Methodology
D. Modified Total Cost Method
II. Markup on Damages
Example – Markups
III. Damage Categories
A. Scope Change Damages
B. Delay Damages
C. Productivity Damages
D. Acceleration Damages
Example – Acceleration Claim
E. Consequential Damages
F. Home Office Overhead Claim
Example – HOOH Claim
G. Lost Profits Due to Loss of Bonding Capacity
Example – Lost Profits Due to Lack of Bonding
H. Interest Claims
Example – Simple Interest Calculation
Example – Monthly Compounding Interest Calculation
I. Loss of Profit on Incomplete Work
Notes
8 Step 7: Formatting and Packaging the Claim. I. Overall Claim Report Outline
II. Formatting
III. Writing Style and Organization. A. Be Factual, Clear, and Unemotional
B. Active Voice vs. Passive Voice
C. CRAC Method for Writing Organization
Example – CRAC Example: Type 1 Differing Site Condition Entitlement Narrative
Example – CRAC Example: Type 1 Differing Site Condition Delay Narrative
Example – CRAC Example: Type 1 Differing Site Condition Damages Narrative
9 Step 8: Non-Binding Dispute Resolution. I. Introduction
II. Prevailing Party Provisions
III. Settlement Meetings
IV. Mediation
A. Mediation Venue
B. Mediation Statements
C. Mediation Format
D. Settlement Paperwork
E. Learn from the Process
F. Mediation Presentations
G. The Mediation Process Is Purposefully Exhausting
10 Step 9: Binding Dispute Resolution
I. Litigation
II. Arbitration
III. Discovery and Disclosures
IV. Witness Testimony
A. When Can Expert Testimony Be Used?
B. Requirements for Expert Testimony
C. How Parties Can Exclude Expert Witness Testimony
V. Deposition Testimony
A. Deposition Rules
B. Typical Deposition Testimony Process
C. Recommendations for Deposition Testimony
D. Be Mindful of the Following Scenarios During Depositions
E. Deposition Testimony Used as Impeachment at Trial
VI. Trial and Arbitration Testimony
Note
11 Termination Claims
I. Termination for Convenience (Owner Termination of Contractor for Convenience)
A. Calculation of the Final Payment Due to the Contractor Under a T for C
1. Calculation of the Value of Work Performed as of the T for C
2. Should the Contractor Account for Defective Work?
3. Termination-Related Costs
4. Lost Profits or Termination Fees or Neither
5. Subtraction of Past Owner Payments to Contractor
Example – T for C Claim
T for C proposal
B. T for C Provisions in Standard Contract Forms
II. Termination for Cause (Owner Termination of Contract with Contractor)
A. T for D Provisions in Standard Contract Forms (Termination by Owner)
B. Key Procedural Provisions in Standard Bond Forms
III. Termination for Cause (Contractor Termination of Contract with Owner)
A. T for D Provisions in Standard Contract Forms (Termination by Contractor)
12 Non-Contract Claims and Defenses. I. Introduction
II. Non-Contract Claims. A. Quantum Meruit
B. Unjust Enrichment
C. Negligence
D. Breach of Implied Warranty
E. Mechanic's Liens
F. The Miller Act and the Little-Miller Act Claims
III. Non-Contract Defenses to Breach of Contract Claims. A. Estoppel
B. Waiver
C. Unconscionability
IV. Summary
13 Allocation of Damages
I. Step 1 Defining the Issue in Dispute
II. Step 2 Defining the Duties of the Various Parties
III. Step 3 Is the Issue Patent or Latent in Nature?
IV. Step 4 Was the Defective Work Covered Up by a Subsequent Trade?
V. Step 5 Did a Third-Party Inspector Approve the Work?
VI. Step 6 Do the Contracts have Indemnification Clauses?
VII. Step 7 Identify the Responsibility of the Various Parties
VIII. General Theory of Allocation Percentages
Example – Owner Rejects Work and the Contractor-Subcontractor Agreements Have Indemnification Clauses
Example – Owner Rejects Work and the Contractor-Subcontractor Agreements Have No Indemnification Clauses
Example – Owner Rejects Work and the Contractor Notes It Is a Design Issue
14 Conclusion
Index
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