International Construction Specialty Conference of the Canadian Society for Civil Engineering (ICSC) (5th : 2015)

Preliminary investigation of the impact of project delivery method on dispute resolution method choice… Gad, Ghada M.; Momoh, Ayodeji K.; Esmaeili, Behzad; Gransberg, Douglas G. Jun 30, 2015

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5th International/11th Construction Specialty Conference 5e International/11e Conférence spécialisée sur la construction    Vancouver, British Columbia June 8 to June 10, 2015 / 8 juin au 10 juin 2015   PRELIMINARY INVESTIGATION OF THE IMPACT OF PROJECT DELIVERY METHOD ON DISPUTE RESOLUTION METHOD CHOICE IN PUBLIC HIGHWAY PROJECTS Ghada M. Gad1,4, Ayodeji K. Momoh1, Behzad Esmaeili2, and Douglas G. Gransberg3 1 Bowling Green State University, Ohio, U.S. 2 University of Nebraska–Lincoln, NE, U.S. 3 Iowa State University, IA, U.S. 4 gmgad@bgsu.edu Abstract: The use of alternative project delivery methods (PDMs) is perceived to create collaborative environments that result in less adversarial relationships between construction parties, which consequently leads to less disputes. While many research studies investigated the alternative PDMs’ impact on cost, schedule, quality, and sustainability, there is limited research to empirically investigate the impact of the PDM on the dispute resolution process choice. This aim of this paper is to conduct a preliminary investigation on how PDMs’ choice has affected Department of Transportation (DOTs) selection of the dispute resolution method (DRM). To achieve this objective, the researchers conducted content analysis of three State DOTs’ specification documents, both for Design-Bid-Build (DBB) and Design-Build (DB) PDMs.  Results show that a stepped process is used in all three states with some form alternative DRM being used before resorting to litigation to provide opportunity for prevention and early resolution of disputes. In terms of PDM effect on the DRM, one state used an amicable dispute resolution process that fosters partnerships in DB and not in DBB projects, while another used partnering efforts regardless of the PDM employed. Also, the use of non-binding DRBs in another DOTs’ DB specifications before resorting to binding DRM provide opportunity for amicable ADR methods to be used before being escalated to litigation. This study serves as a preliminary investigation of how PDM choice could affect the way disputes are handled and results show that there is no consistent manner on which the dispute resolution process is selected based on PDM. 1 INTRODUCTION   Being a very complex and competitive industry in which participants with different expertise, talents, and levels of knowledge work together to achieve set objectives, conflicts become inevitable. If conflicts are not well managed and resolved in a timely manner, they quickly turn into disputes, which prevent the successful completion of the construction project (Cakmak & Cakmak, 2014). With 10 to 30 percent of construction projects having serious disputes and one in four construction projects having a claim, disputes can become very expensive. Transactional costs for dispute and claims resolution may total $4 - $12 billion per year. Such costs include lawyers and witnesses fees, employees’ salaries and overhead (who divert from productive profit-making work to litigation activities), in addition to construction process inefficiencies and delays, and ultimately the costs of hostile relationships that remove any opportunity for profits from repeat business (FFC 2007). 228-1 Acknowledging the fact the construction disputes will occur inevitably, the construction industry has made tremendous progress in developing more efficient and amicable methods for dispute prevention and resolution. Paradoxically, experts frequently refer to the construction industry as being on the innovative edge regarding dispute resolution (ENR 2000). One of the early decisions that prevents disputes on a project is selecting the most appropriate project delivery and management method (FFC 2006). It has been conceived that the use of traditional PDMs and low bid process often create adversarial relationships between the parties involved compared to alternative PDMs that are characterized by being highly collaborative intending to replace the individual parties’ success with overall project success. In line with the various contract conditions that reflect the collaborative-based approach of alternative PDMs, the dispute resolution process selected should portray the level of collaboration expected on the project, i.e., offer opportunity for using amicable dispute resolution process before resorting to hostile DRMs. However, to date, there has been little research conducted, especially on highway infrastructure projects, to investigate this notion and its implication on the project management. Therefore, this research aims to conduct a preliminary investigation on the impact of different PDMs on selection of the dispute resolution process by the State Departments of Transportation (DOTs). In essence, has the use of more collaborative forms of PDMs resulted in selecting less adversarial Dispute Resolution Methods (DRMs)? In order to achieve this objective, the paper first introduces the various forms of PDMs and DRMs used in the construction industry. Then, the result of a content analysis that was conducted to compare the current dispute resolution practices in various PDMs is presented.  1.1 Project Delivery Methods PDMs define the relationship, roles, and responsibilities of project team members and the sequence of activities required to provide a facility. The particular method through which a given construction project is designed and constructed is an important consideration prior to beginning a project, as it has a significant impact on cost, risk, and the overall schedule. Examples of PDMs used in the construction industry are the traditional design-bid-build (DBB), design-build (DB), construction manager at risk (CMR), integrated project delivery, and public-private-partnerships. This paper will mainly focus on DB and DBB PDMs. In DBB, the traditional and most popular form of PDM, the owner hires an engineer to design the project in its entirety, creating both the plans and specifications that identify all the project parameters. The project is then put up for a competitive bid after which a separate firm is hired to serve as the general contractor. Project award is usually based on the lowest responsive bid. Some of the challenges with this system are the adversarial relationships among project participants and lack of contractor’s input during design leading to potential change orders. In case of DB PDM, the owner hires one entity to serve as both the contractor and the design professional. This set-up also allows contractor’s input during design, single point of responsibility for construction and design, and fast-track delivery. However, there is potential loss of owner’s control specifically loss of checks and balances. Over the past 15 years, use of DB has greatly increased in the U.S., making this delivery method one of the most significant methods in design and construction today (DBIA n.d.). Research has found that the DB PDM is more effective in large and complex projects (Koncher and Sanvido 1998). Other than contractual PDM method implementation, the U.S. Army Corps of Engineers developed the partnering process in the 1980s to fundamentally change the manner in which contractual parties relate to each other – creating a cooperative team approach rather than the more historically common adversarial approach. Partnering do not modify any existing contractual requirements; it is a voluntary process, and joint costs are typically shared by the parties. Partnering involves working together as a team, developing a common set of project goals, open communication and access to information, empowering participants to resolve issues at the lowest appropriate organizational level, reaching decisions and solving problems quickly and by consensus, and maintaining the relationship throughout the project (AAA 1996).  PDMs is a well-researched topic in construction research. Most studies conducted, in public highway projects, focused on comparing various PDM in terms of their performance (cost, schedule, sustainability, and quality). Warne (2005) conducted a performance assessment of DB contracting for highway projects in terms of schedule, cost, quality, and owner satisfaction, by gathering information on 21 DB highway projects ranging in size from $83 million to $1.3 billion. Shrestha et al. (2012) also focused on highway project investigating project performance metrics of 130 DB large highway projects in Texas. Results, in 228-2 both studies, showed that the selected projects were built faster using DB than they would have been with DBB (Warne 2005, Shrestha e al. 2012). As DB is more widely being implemented, studies whether on the national or state level are continuously being conducted to evaluate DB projects’ performance (FDOT 2004; FHWA 2006). In January 2006, FHWA published the results of a comprehensive national study conducted to evaluate DB contracting effectiveness, from different states that were taking the lead on DB implementation. Research studies were also conducted to evaluate quality such as the Arizona DB projects quality study (Ernzen and Feeney 2002), quality qualifications assessment in DB solicitation documents (Gransberg and Molenaar 2004) and a synthesis of how quality is handled in DB projects (Gransberg et. al. 2008). In another study, Minchin et al. (2013) compared time and cost performance of 60 projects from Florida DOT (FDOT) and found that DBB projects outperform DB projects in terms of cost. As can be seen, most research discussed earlier have considered cost, time, and quality but there hasn’t been any major work that directly addresses the relationship between PDM use and disputes/dispute resolution process, especially as related to highway projects. 1.2 Disputes and Claims With all the PDMs discussed and different degrees of collaboration among parties involved, the complexities involved in construction projects and the magnitude of risks, it is still a fact that construction industry is characterized by being one of the most adversarial industries generating disputes and claims.  Disputes occur on construction projects for many reasons such as schedule targets, acceleration, co-ordination, culture, differing goals, and delays conditions. Claims would generally occur if the contractor requests additional compensation for deviations from original contract or the owner seeks compensation for contractor’s failure to meet contractual requirements (FFC 2007). In Korea, Acharya and Lee (2006) identified six critical construction conflicts: site conditions, local people obstruction, errors and omission in design, double meaning in specification, excessive quantity of works, and difference in change order evaluation. Sigitas and Tomas (2013) hypothesize that the true cause of construction-related conflicts is unsuccessful communication among the construction project participants.   There are different methods to resolve disputes on construction projects. Litigation is the traditional method employed in courts, where all parties are subject to all of the forms of discovery, such as interrogatories, requests for admission, document production demands, and depositions. The parties then have a trial, which if they are dissatisfied by its results, they can appeal. Historically, litigation has had a reputation for being a long expensive process. In the public sector, there are often requirements that contractors must first file a government claim and go through an administrative hearing procedure before they can proceed to arbitrate or litigate their claims. This is known as Government Claims Procedure (Klinger 2009). According to the American bar, Alternative Dispute Resolution (ADR) methods are increasingly used in the construction industry in lieu of or as a step preceding litigation, as they can handle disputes quicker and are relatively inexpensive. Some of these ADR could be binding to assure parties that they will not have to resort to outside litigation to settle disputes (Dettman and Harty 2008).   Commonly used ADR methods include: step negotiation, mediation, Dispute Review Boards (DRBs), and arbitration. Step Negotiation requires the individuals getting directly involved in dispute to seek resolution by direct negotiation. In the event of resolution not being reached within a certain period, the dispute is taken to the next level which could continue to senior level of each organization. According to Texas Civil Practice and remedies code 154.023, “mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.” Whether it is during the course of construction or after the project is complete, mediation is arguably the most satisfying DRM. It can occur as early in the process as the parties are able to organize a mediation and identify a mutually agreeable mediator (Klinger 2009). DRB, on the other side, involves three neutral experts who visit the site periodically and monitor progress and potential problems that might lead to disputes. Once a dispute occurs, it is brought to the board who conducts an informal hearing and issues an advisory opinion that could be either binding or non-binding. DRB cost is typically 0.15% of the total construction cost which is far less than using arbitration or litigation. Finally, arbitration is a non-judicial forum to settle disputes; its benefit emerges from the fact that construction disputes often require the decision-maker to be well versed in technical and industrial matters, in addition to legal issues (Yates and Smith 2007). However, in a survey conducted in the U.S., 31 out of 42 arbitrators reported 228-3 that “arbitration is becoming too much like court litigation and thereby losing its promise of providing an expedited and efficient means of resolving commercial disputes…” (AAA 2010, p.42). Few papers address the topic of disputes occurrence and contracting strategy/PDM . The Federal Facilities Council (2007) compiled a report of presentations given by speakers who are experts in resolving construction disputes. Using the Pentagon renovation project, the report highlighted how projects transferring more risk to contractor and using a low-bid process are more prone to having claims. Contracts should portray realistic risk assignment to parties rather than convey the bargaining powers of the parties. In addition to inequitable risk allocation, the report addressed disputes’ causes that are attributable to the contracting/bidding strategy such as low bid process, poorly developed contracts, and lack of project management procedures (FFC 2007). Another interesting observation by Independent Project Analysis’s study conducted on projects of diverse types was that, in contrary to the perception that fewer claims are anticipated in shared risk contracts, no difference was seen between claims’ frequency on shared risk versus contractor-allocated risk contracts. This was attributed to inappropriate risk allocation strategies. The study also looked at DRM choice showing that arbitration encouraged inflated claim values while other forms such as DRBs and mediation did not affect claim frequency (FFC 2007). Two other studies, one in Malaysia and the other in UK reported that alternative PDMs reduced disputes frequency (Ndekugri and Turner 1994, Yusof et al. 2011). Mante et al. (2012) conducted a preliminary study on dispute resolution by analyzing DRM provisions in standard contract forms showing that regardless of the PDM, the same dispute resolution provisions were used. The paper also reinforced our literature review that the amount of research done related to PDM and dispute reduction/resolution is limited.   The previous sections show that, on one side, there are many DRMs, with varying degrees of hostility, that evolved to manage the numerous claims/disputes that occur on construction projects while on the other side, there are many forms of PDMs, some of which are assumed to create more collaborative environments less prone to disputes. Although there seems to be a strong link between PDM use and dispute process selected, there has not been any consolidated research conducted to investigate the effect of PDMs choice on selection of DRMs or process, especially as related to public highway projects. 2 METHODOLOGY This aim of this paper is to conduct a preliminary investigation on how the choice of different PDMs has affected how DOTs are currently selecting the DRM used. To achieve this objective, the researchers conducted content analysis of three State DOTs’ specification documents, both for the traditional PDM and DB PDM. The aim of the content analysis was to develop valid inferences using a set of procedures from the documents studied (Neuendorf 2002).  The three state DOTs studied were Florida DOT (FDOT), Ohio DOT (ODOT), and Colorado DOT (CDOT). These three State DOTs were selected because they have a well-established DB process. CDOT started using DB on a few projects in the 1990's after obtaining FHWA Special Experimental Project Number 14 (SEP-14) – Innovative Contracting program approval, however, in 1999, the Colorado State Legislation was officially obtained allowing DB use.  As for FDOT, DB has been permitted by all agencies for all types of design and construction since 1997. ODOT represents also one of the early participants in SEP-14 in 1990, to test and evaluate DB, among other PDMs, as a potential effective method to deliver highway projects (DBIA, n.d.). Over the past few decades, DB has been increasingly used by ODOT in projects of different characteristics. Specification documents were retrieved from the DOTs’ websites (Table 1). In cases where it was not possible to locate the DB standard specification, DOT DB projects solicitation documents were studied to identify the dispute resolution process used. It was assumed that the specification document was for traditional PDM if no specific PDM was specified. Six state DOT specification/bid documents from the three DOTs, together with three FDOT solicitation documents, were analyzed to determine the process followed from the occurrence of the event giving rise to the claim until resolution of the claim using any form of DRM. The content analysis of the documents focused on three main aspects; 1) how DOTs define the word ‘claim’ and ‘dispute’, 2) the process that precedes resorting to the formal DRM, if stated, and 3) the formal DRM employed. After each State DOT specifications were analyzed, the traditional versus the 228-4 alternative PDM specification document was compared to infer the differences (if any) between the DRM and the process utilized to resolve in each of these State DOTs given different PDM.  Table 1: Standard Specification and Solicitation Documents Studied State DOT Specification document - Issue Date Traditional project delivery DB project delivery Colorado - Standard Specifications for Road and Bridge Construction – 2011 - Standard Special Provision revising CDOT’s Standard Specifications for Road & Bridge Construction- 11/6/2014 RFP documents (Book 1 DB Contract Provisions) for the following projects: - I-25/Cimarron Street (US 24) - 2014,  - I-25 North - 2012 - SH 285 Reconstruction - 2008 Florida - Standard Specifications for Road & Bridge Construction -  01/2015 - Design-Build Specifications – 09/08/2014 Ohio - Construction and Material Specifications – 01/01/2013 - Revisions to 2013 Construction & Material Specifications for DB Projects–12/31/2012  3 RESULTS & ANALYSIS 3.1 Colorado DOT Both CDOT 2011 Standard Specifications for Road and Bridge Construction (with no PDM specified), here in after called ‘2011 CDOT SS’, and the RFP documents (Book 1 DB Contract Provisions) define dispute as a “disagreement”. As per 2011 CDOT, dispute is a “… disagreement concerning contract price, time, interpretation of the Contract, or all three between the parties at the project level regarding or relating to the Contract”, or as the DB RFP documents, disputes could be disagreements “resulting from a change, delay, change order, another written order, or an oral order from the Project Director or his designee…” Claim on the other side, as per the DB project RFP documents (Book 1 Contract Provisions), is defined as “…a separate demand by the Contractor for: (i) a time extension which is disputed by CDOT, or (ii) payment of money or damages arising from work done by or on behalf of the Contractor in connection with the Contract which is disputed by CDOT.  A claim will cease to be a Claim upon resolution thereof, including resolution by delivery of a Change Order or Contract amendment signed by all parties.” Thus, as per CDOT, the process starts with a dispute that is then elevated to a claim, if not resolved at the project level.  The 2011 CDOT SS (traditional PDM) document subsections 105.22, 105.23, and 105.24 detail the dispute resolution process. It states that either party can initiate the resolution process when an issue arises that cannot be resolved between the parties. CDOT follows a stepped-process that starts at the project level and can be escalated all the way to litigation or arbitration (Figure 1). The process starts with the contractor providing a written notice of dispute to the project engineer about the failure of the parties to resolve the dispute. This notice is then followed by a request for equitable adjustment (REA) -within 15 days- which should include supporting documents such as nature of the circumstance which caused the dispute, statement explaining provision of the contract, and all evidences. Within 15 days of receiving the REA, the engineer meets with the contractor and in seven days issues a written decision on the merits of the dispute. If the contractor does not accept the decision, the contractor provides notice to the resident engineer who meets with the contractor as well as the project engineer within 7 days of receiving the contractor’s written notice, on a weekly basis for a period up to 30 days, to discuss and resolve the dispute. If dispute remains unresolved, the project engineer directs it to DRB.   CDOT specifies two types of DRB in their provisions: “On Demand DRB” and “Standing DRB”. “On Demand DRB” is the default DRB to be used unless the project contract documents specify otherwise. On Demand DRBs constitute only one member, if the dispute value is less than $250,000, and three members in larger dispute values. However, Standing DRBs always have three members that are selected during the preconstruction stage and will meet regularly during the course of the project. Standing DRBs (as per the standard special provision dated November 6, 2014 that revises CDOT’s Standard Specifications for Road and Bridge Construction) are typically used in projects that are larger than $15 million, involving complex construction or structures or multiphase construction, with major traffic 228-5 process versus the other affect the numbers of claim that evolve and the number of claims that move to litigation and how, if any, the stepped process help reduce the number of claims in these DOTs compared to others. Despite of these limitations, this study addresses an important knowledge gap and paves the way for future in-depth studies regarding dispute prevention and minimization and alternative PDMs.  References Acharya, N. K. Lee, Y. D., and Im, H. M. 2006. Conflicting factors in construction projects: Korean perspective, Engineering, Construction and Architectural Management, 13 (6): 543 – 566 American Arbitration Association (AAA). 1996. Building success for the 21st Century: A Guide to partnering in the construction industry. Available at: www.adr.org. American Arbitration Association (AAA). 2010. Handbook of Arbitration Practice. Jurisnet, LLC.. Cakmak, E. & Cakmak, P. I. (2014). An analysis of causes of disputes in the construction industry using analytical network process. Procedia-Social and Behavioral Sciences, 109: 183-187. Design Build Institue of America (DBIA). n.d. History of DBIA State Advocacy. Available at: http://www.dbia.org/advocacy/state/Pages/default.aspx  Dettman, K. L. and Harty, M.J. 2008. Mediators as Settlement Process Chaperones: A New Approach to Resolving Complex, Multi-Party Disputes. ADR Quarterly: ADR Section of the State Bar of Michigan.  Engineering News Record (ENR). 2000. Arbitrators found on the web. ENR, 245 (7): 37. Federal Facilities Council (FFC). 2007. Reducing Construction Costs: Uses of Best Dispute Resolution Practices by Project Owners. Proceedings Report Federal Facilities Council Technical Report No. 149, The National Academies Press, Washington, D.C. ISBN: 0-309-66549-3, 68  Federal Highway Administration (FHWA). 2006. Design-build effectiveness study—As required by TEA-21 Section 1307(f). Final Rep. Congress, Washington, D.C.  Florida Department of Transportation (FDOT). 2004. Design Build Program Evaluation- Evaluation for July 1996 – June 2003 Project Management, Research & Development Office Gransberg, D. D., Datin, J. and, K. R. Molenaar. 2008. Quality Assurance in Design-Build Projects: A Synthesis of Highway Practice. National Cooperative Highway Research Program Synthesis 376. American Association of State Highway & Transportation Officials  with the Federal Highway Admin.  Gransberg, D. D  and Molenaar, K. R. 2004. Analysis of Owner’s Design and Construction Quality Management Approaches in Design/Build Projects. J. of Manage. in  Engineering, 20(4): 162–169 Klinger, M. 2009. Confronting Construction Conflicts. Electrical Construction &  Maintenance,108(3): 14 Konchar, M. and Sanvido, V. 1998. Comparison of U.S. Project Delivery Systems. J. Constr. Eng. Manage., ASCE 124 (6): 435-444.  Mante J., Ndekugri I., Ankrah N. and Hammond F. 2012. The influence of procurement methods on dispute resolution mechanism choice in construction. Procs 28th Annual ARCOM Conference, Edinburgh, UK, Association of Researchers in Construction Management, 979-988. Minchin, R., Jr., Li, X., Issa, R., and Vargas, G., 2013. Comparison of Cost and Time Performance of DB and DBB Delivery Systems in Florida. J. of Constr. Eng.& Mgmt, 139(10), 04013007. Ndekugri, I. and Turner, A. 1994. ”Building Procurement by Design and Build Approach.” J. Constr. Eng. Manage., 120(2), 243–256. Neuendorf, K. 2002. The Content Analysis Guidebook. Thousand Oaks, California: Sage Publications. Shrestha, P. P., O'Connor, J. T., and Gibson Jr. G. E., 2012. Performance Comparison of Large Design-Build and Design-Bid-Build Highway Projects. J. Constr. Eng. Manage., 138 (1): 1-13.  Sigitas Mitkusa, T. M. 2013. Causes of conflicts in a construction industry: a communicational . Procedia - Social and Behavioral Sciences . Warne, T. R. 2005. Design Build Contracting for Highway Projects: A Performance Assessment. Tom Warne & Associates, LLC. Yates, J. K., and Smith, J. A. 2007. Global legal issues for engineers and constructors. J. of Professional Iss. in Eng. Educ. and Practice, 133(3): 199.        Yusof, A., Ismail, S., and Chin, L.S. 2011. Procurement Method as Conflict & Dispute Reduction Mechanism for Construction Industry in Malaysia. Int’l Proc. of Econ. Develp. & Research, 15: 215 228-10  5th International/11th Construction Specialty Conference 5e International/11e Conférence spécialisée sur la construction    Vancouver, British Columbia June 8 to June 10, 2015 / 8 juin au 10 juin 2015   PRELIMINARY INVESTIGATION OF THE IMPACT OF PROJECT DELIVERY METHOD ON DISPUTE RESOLUTION METHOD CHOICE IN PUBLIC HIGHWAY PROJECTS Ghada M. Gad1,4, Ayodeji K. Momoh1, Behzad Esmaeili2, and Douglas G. Gransberg3 1 Bowling Green State University, Ohio, U.S. 2 University of Nebraska–Lincoln, NE, U.S. 3 Iowa State University, IA, U.S. 4 gmgad@bgsu.edu Abstract: The use of alternative project delivery methods (PDMs) is perceived to create collaborative environments that result in less adversarial relationships between construction parties, which consequently leads to less disputes. While many research studies investigated the alternative PDMs’ impact on cost, schedule, quality, and sustainability, there is limited research to empirically investigate the impact of the PDM on the dispute resolution process choice. This aim of this paper is to conduct a preliminary investigation on how PDMs’ choice has affected Department of Transportation (DOTs) selection of the dispute resolution method (DRM). To achieve this objective, the researchers conducted content analysis of three State DOTs’ specification documents, both for Design-Bid-Build (DBB) and Design-Build (DB) PDMs.  Results show that a stepped process is used in all three states with some form alternative DRM being used before resorting to litigation to provide opportunity for prevention and early resolution of disputes. In terms of PDM effect on the DRM, one state used an amicable dispute resolution process that fosters partnerships in DB and not in DBB projects, while another used partnering efforts regardless of the PDM employed. Also, the use of non-binding DRBs in another DOTs’ DB specifications before resorting to binding DRM provide opportunity for amicable ADR methods to be used before being escalated to litigation. This study serves as a preliminary investigation of how PDM choice could affect the way disputes are handled and results show that there is no consistent manner on which the dispute resolution process is selected based on PDM. 1 INTRODUCTION   Being a very complex and competitive industry in which participants with different expertise, talents, and levels of knowledge work together to achieve set objectives, conflicts become inevitable. If conflicts are not well managed and resolved in a timely manner, they quickly turn into disputes, which prevent the successful completion of the construction project (Cakmak & Cakmak, 2014). With 10 to 30 percent of construction projects having serious disputes and one in four construction projects having a claim, disputes can become very expensive. Transactional costs for dispute and claims resolution may total $4 - $12 billion per year. Such costs include lawyers and witnesses fees, employees’ salaries and overhead (who divert from productive profit-making work to litigation activities), in addition to construction process inefficiencies and delays, and ultimately the costs of hostile relationships that remove any opportunity for profits from repeat business (FFC 2007). 228-1 Acknowledging the fact the construction disputes will occur inevitably, the construction industry has made tremendous progress in developing more efficient and amicable methods for dispute prevention and resolution. Paradoxically, experts frequently refer to the construction industry as being on the innovative edge regarding dispute resolution (ENR 2000). One of the early decisions that prevents disputes on a project is selecting the most appropriate project delivery and management method (FFC 2006). It has been conceived that the use of traditional PDMs and low bid process often create adversarial relationships between the parties involved compared to alternative PDMs that are characterized by being highly collaborative intending to replace the individual parties’ success with overall project success. In line with the various contract conditions that reflect the collaborative-based approach of alternative PDMs, the dispute resolution process selected should portray the level of collaboration expected on the project, i.e., offer opportunity for using amicable dispute resolution process before resorting to hostile DRMs. However, to date, there has been little research conducted, especially on highway infrastructure projects, to investigate this notion and its implication on the project management. Therefore, this research aims to conduct a preliminary investigation on the impact of different PDMs on selection of the dispute resolution process by the State Departments of Transportation (DOTs). In essence, has the use of more collaborative forms of PDMs resulted in selecting less adversarial Dispute Resolution Methods (DRMs)? In order to achieve this objective, the paper first introduces the various forms of PDMs and DRMs used in the construction industry. Then, the result of a content analysis that was conducted to compare the current dispute resolution practices in various PDMs is presented.  1.1 Project Delivery Methods PDMs define the relationship, roles, and responsibilities of project team members and the sequence of activities required to provide a facility. The particular method through which a given construction project is designed and constructed is an important consideration prior to beginning a project, as it has a significant impact on cost, risk, and the overall schedule. Examples of PDMs used in the construction industry are the traditional design-bid-build (DBB), design-build (DB), construction manager at risk (CMR), integrated project delivery, and public-private-partnerships. This paper will mainly focus on DB and DBB PDMs. In DBB, the traditional and most popular form of PDM, the owner hires an engineer to design the project in its entirety, creating both the plans and specifications that identify all the project parameters. The project is then put up for a competitive bid after which a separate firm is hired to serve as the general contractor. Project award is usually based on the lowest responsive bid. Some of the challenges with this system are the adversarial relationships among project participants and lack of contractor’s input during design leading to potential change orders. In case of DB PDM, the owner hires one entity to serve as both the contractor and the design professional. This set-up also allows contractor’s input during design, single point of responsibility for construction and design, and fast-track delivery. However, there is potential loss of owner’s control specifically loss of checks and balances. Over the past 15 years, use of DB has greatly increased in the U.S., making this delivery method one of the most significant methods in design and construction today (DBIA n.d.). Research has found that the DB PDM is more effective in large and complex projects (Koncher and Sanvido 1998). Other than contractual PDM method implementation, the U.S. Army Corps of Engineers developed the partnering process in the 1980s to fundamentally change the manner in which contractual parties relate to each other – creating a cooperative team approach rather than the more historically common adversarial approach. Partnering do not modify any existing contractual requirements; it is a voluntary process, and joint costs are typically shared by the parties. Partnering involves working together as a team, developing a common set of project goals, open communication and access to information, empowering participants to resolve issues at the lowest appropriate organizational level, reaching decisions and solving problems quickly and by consensus, and maintaining the relationship throughout the project (AAA 1996).  PDMs is a well-researched topic in construction research. Most studies conducted, in public highway projects, focused on comparing various PDM in terms of their performance (cost, schedule, sustainability, and quality). Warne (2005) conducted a performance assessment of DB contracting for highway projects in terms of schedule, cost, quality, and owner satisfaction, by gathering information on 21 DB highway projects ranging in size from $83 million to $1.3 billion. Shrestha et al. (2012) also focused on highway project investigating project performance metrics of 130 DB large highway projects in Texas. Results, in 228-2 both studies, showed that the selected projects were built faster using DB than they would have been with DBB (Warne 2005, Shrestha e al. 2012). As DB is more widely being implemented, studies whether on the national or state level are continuously being conducted to evaluate DB projects’ performance (FDOT 2004; FHWA 2006). In January 2006, FHWA published the results of a comprehensive national study conducted to evaluate DB contracting effectiveness, from different states that were taking the lead on DB implementation. Research studies were also conducted to evaluate quality such as the Arizona DB projects quality study (Ernzen and Feeney 2002), quality qualifications assessment in DB solicitation documents (Gransberg and Molenaar 2004) and a synthesis of how quality is handled in DB projects (Gransberg et. al. 2008). In another study, Minchin et al. (2013) compared time and cost performance of 60 projects from Florida DOT (FDOT) and found that DBB projects outperform DB projects in terms of cost. As can be seen, most research discussed earlier have considered cost, time, and quality but there hasn’t been any major work that directly addresses the relationship between PDM use and disputes/dispute resolution process, especially as related to highway projects. 1.2 Disputes and Claims With all the PDMs discussed and different degrees of collaboration among parties involved, the complexities involved in construction projects and the magnitude of risks, it is still a fact that construction industry is characterized by being one of the most adversarial industries generating disputes and claims.  Disputes occur on construction projects for many reasons such as schedule targets, acceleration, co-ordination, culture, differing goals, and delays conditions. Claims would generally occur if the contractor requests additional compensation for deviations from original contract or the owner seeks compensation for contractor’s failure to meet contractual requirements (FFC 2007). In Korea, Acharya and Lee (2006) identified six critical construction conflicts: site conditions, local people obstruction, errors and omission in design, double meaning in specification, excessive quantity of works, and difference in change order evaluation. Sigitas and Tomas (2013) hypothesize that the true cause of construction-related conflicts is unsuccessful communication among the construction project participants.   There are different methods to resolve disputes on construction projects. Litigation is the traditional method employed in courts, where all parties are subject to all of the forms of discovery, such as interrogatories, requests for admission, document production demands, and depositions. The parties then have a trial, which if they are dissatisfied by its results, they can appeal. Historically, litigation has had a reputation for being a long expensive process. In the public sector, there are often requirements that contractors must first file a government claim and go through an administrative hearing procedure before they can proceed to arbitrate or litigate their claims. This is known as Government Claims Procedure (Klinger 2009). According to the American bar, Alternative Dispute Resolution (ADR) methods are increasingly used in the construction industry in lieu of or as a step preceding litigation, as they can handle disputes quicker and are relatively inexpensive. Some of these ADR could be binding to assure parties that they will not have to resort to outside litigation to settle disputes (Dettman and Harty 2008).   Commonly used ADR methods include: step negotiation, mediation, Dispute Review Boards (DRBs), and arbitration. Step Negotiation requires the individuals getting directly involved in dispute to seek resolution by direct negotiation. In the event of resolution not being reached within a certain period, the dispute is taken to the next level which could continue to senior level of each organization. According to Texas Civil Practice and remedies code 154.023, “mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.” Whether it is during the course of construction or after the project is complete, mediation is arguably the most satisfying DRM. It can occur as early in the process as the parties are able to organize a mediation and identify a mutually agreeable mediator (Klinger 2009). DRB, on the other side, involves three neutral experts who visit the site periodically and monitor progress and potential problems that might lead to disputes. Once a dispute occurs, it is brought to the board who conducts an informal hearing and issues an advisory opinion that could be either binding or non-binding. DRB cost is typically 0.15% of the total construction cost which is far less than using arbitration or litigation. Finally, arbitration is a non-judicial forum to settle disputes; its benefit emerges from the fact that construction disputes often require the decision-maker to be well versed in technical and industrial matters, in addition to legal issues (Yates and Smith 2007). However, in a survey conducted in the U.S., 31 out of 42 arbitrators reported 228-3 that “arbitration is becoming too much like court litigation and thereby losing its promise of providing an expedited and efficient means of resolving commercial disputes…” (AAA 2010, p.42). Few papers address the topic of disputes occurrence and contracting strategy/PDM . The Federal Facilities Council (2007) compiled a report of presentations given by speakers who are experts in resolving construction disputes. Using the Pentagon renovation project, the report highlighted how projects transferring more risk to contractor and using a low-bid process are more prone to having claims. Contracts should portray realistic risk assignment to parties rather than convey the bargaining powers of the parties. In addition to inequitable risk allocation, the report addressed disputes’ causes that are attributable to the contracting/bidding strategy such as low bid process, poorly developed contracts, and lack of project management procedures (FFC 2007). Another interesting observation by Independent Project Analysis’s study conducted on projects of diverse types was that, in contrary to the perception that fewer claims are anticipated in shared risk contracts, no difference was seen between claims’ frequency on shared risk versus contractor-allocated risk contracts. This was attributed to inappropriate risk allocation strategies. The study also looked at DRM choice showing that arbitration encouraged inflated claim values while other forms such as DRBs and mediation did not affect claim frequency (FFC 2007). Two other studies, one in Malaysia and the other in UK reported that alternative PDMs reduced disputes frequency (Ndekugri and Turner 1994, Yusof et al. 2011). Mante et al. (2012) conducted a preliminary study on dispute resolution by analyzing DRM provisions in standard contract forms showing that regardless of the PDM, the same dispute resolution provisions were used. The paper also reinforced our literature review that the amount of research done related to PDM and dispute reduction/resolution is limited.   The previous sections show that, on one side, there are many DRMs, with varying degrees of hostility, that evolved to manage the numerous claims/disputes that occur on construction projects while on the other side, there are many forms of PDMs, some of which are assumed to create more collaborative environments less prone to disputes. Although there seems to be a strong link between PDM use and dispute process selected, there has not been any consolidated research conducted to investigate the effect of PDMs choice on selection of DRMs or process, especially as related to public highway projects. 2 METHODOLOGY This aim of this paper is to conduct a preliminary investigation on how the choice of different PDMs has affected how DOTs are currently selecting the DRM used. To achieve this objective, the researchers conducted content analysis of three State DOTs’ specification documents, both for the traditional PDM and DB PDM. The aim of the content analysis was to develop valid inferences using a set of procedures from the documents studied (Neuendorf 2002).  The three state DOTs studied were Florida DOT (FDOT), Ohio DOT (ODOT), and Colorado DOT (CDOT). These three State DOTs were selected because they have a well-established DB process. CDOT started using DB on a few projects in the 1990's after obtaining FHWA Special Experimental Project Number 14 (SEP-14) – Innovative Contracting program approval, however, in 1999, the Colorado State Legislation was officially obtained allowing DB use.  As for FDOT, DB has been permitted by all agencies for all types of design and construction since 1997. ODOT represents also one of the early participants in SEP-14 in 1990, to test and evaluate DB, among other PDMs, as a potential effective method to deliver highway projects (DBIA, n.d.). Over the past few decades, DB has been increasingly used by ODOT in projects of different characteristics. Specification documents were retrieved from the DOTs’ websites (Table 1). In cases where it was not possible to locate the DB standard specification, DOT DB projects solicitation documents were studied to identify the dispute resolution process used. It was assumed that the specification document was for traditional PDM if no specific PDM was specified. Six state DOT specification/bid documents from the three DOTs, together with three FDOT solicitation documents, were analyzed to determine the process followed from the occurrence of the event giving rise to the claim until resolution of the claim using any form of DRM. The content analysis of the documents focused on three main aspects; 1) how DOTs define the word ‘claim’ and ‘dispute’, 2) the process that precedes resorting to the formal DRM, if stated, and 3) the formal DRM employed. After each State DOT specifications were analyzed, the traditional versus the 228-4 alternative PDM specification document was compared to infer the differences (if any) between the DRM and the process utilized to resolve in each of these State DOTs given different PDM.  Table 1: Standard Specification and Solicitation Documents Studied State DOT Specification document - Issue Date Traditional project delivery DB project delivery Colorado - Standard Specifications for Road and Bridge Construction – 2011 - Standard Special Provision revising CDOT’s Standard Specifications for Road & Bridge Construction- 11/6/2014 RFP documents (Book 1 DB Contract Provisions) for the following projects: - I-25/Cimarron Street (US 24) - 2014,  - I-25 North - 2012 - SH 285 Reconstruction - 2008 Florida - Standard Specifications for Road & Bridge Construction -  01/2015 - Design-Build Specifications – 09/08/2014 Ohio - Construction and Material Specifications – 01/01/2013 - Revisions to 2013 Construction & Material Specifications for DB Projects–12/31/2012  3 RESULTS & ANALYSIS 3.1 Colorado DOT Both CDOT 2011 Standard Specifications for Road and Bridge Construction (with no PDM specified), here in after called ‘2011 CDOT SS’, and the RFP documents (Book 1 DB Contract Provisions) define dispute as a “disagreement”. As per 2011 CDOT, dispute is a “… disagreement concerning contract price, time, interpretation of the Contract, or all three between the parties at the project level regarding or relating to the Contract”, or as the DB RFP documents, disputes could be disagreements “resulting from a change, delay, change order, another written order, or an oral order from the Project Director or his designee…” Claim on the other side, as per the DB project RFP documents (Book 1 Contract Provisions), is defined as “…a separate demand by the Contractor for: (i) a time extension which is disputed by CDOT, or (ii) payment of money or damages arising from work done by or on behalf of the Contractor in connection with the Contract which is disputed by CDOT.  A claim will cease to be a Claim upon resolution thereof, including resolution by delivery of a Change Order or Contract amendment signed by all parties.” Thus, as per CDOT, the process starts with a dispute that is then elevated to a claim, if not resolved at the project level.  The 2011 CDOT SS (traditional PDM) document subsections 105.22, 105.23, and 105.24 detail the dispute resolution process. It states that either party can initiate the resolution process when an issue arises that cannot be resolved between the parties. CDOT follows a stepped-process that starts at the project level and can be escalated all the way to litigation or arbitration (Figure 1). The process starts with the contractor providing a written notice of dispute to the project engineer about the failure of the parties to resolve the dispute. This notice is then followed by a request for equitable adjustment (REA) -within 15 days- which should include supporting documents such as nature of the circumstance which caused the dispute, statement explaining provision of the contract, and all evidences. Within 15 days of receiving the REA, the engineer meets with the contractor and in seven days issues a written decision on the merits of the dispute. If the contractor does not accept the decision, the contractor provides notice to the resident engineer who meets with the contractor as well as the project engineer within 7 days of receiving the contractor’s written notice, on a weekly basis for a period up to 30 days, to discuss and resolve the dispute. If dispute remains unresolved, the project engineer directs it to DRB.   CDOT specifies two types of DRB in their provisions: “On Demand DRB” and “Standing DRB”. “On Demand DRB” is the default DRB to be used unless the project contract documents specify otherwise. On Demand DRBs constitute only one member, if the dispute value is less than $250,000, and three members in larger dispute values. However, Standing DRBs always have three members that are selected during the preconstruction stage and will meet regularly during the course of the project. Standing DRBs (as per the standard special provision dated November 6, 2014 that revises CDOT’s Standard Specifications for Road and Bridge Construction) are typically used in projects that are larger than $15 million, involving complex construction or structures or multiphase construction, with major traffic 228-5 process versus the other affect the numbers of claim that evolve and the number of claims that move to litigation and how, if any, the stepped process help reduce the number of claims in these DOTs compared to others. Despite of these limitations, this study addresses an important knowledge gap and paves the way for future in-depth studies regarding dispute prevention and minimization and alternative PDMs.  References Acharya, N. K. Lee, Y. D., and Im, H. M. 2006. Conflicting factors in construction projects: Korean perspective, Engineering, Construction and Architectural Management, 13 (6): 543 – 566 American Arbitration Association (AAA). 1996. Building success for the 21st Century: A Guide to partnering in the construction industry. Available at: www.adr.org. American Arbitration Association (AAA). 2010. Handbook of Arbitration Practice. Jurisnet, LLC.. Cakmak, E. & Cakmak, P. I. (2014). An analysis of causes of disputes in the construction industry using analytical network process. Procedia-Social and Behavioral Sciences, 109: 183-187. Design Build Institue of America (DBIA). n.d. History of DBIA State Advocacy. Available at: http://www.dbia.org/advocacy/state/Pages/default.aspx  Dettman, K. L. and Harty, M.J. 2008. Mediators as Settlement Process Chaperones: A New Approach to Resolving Complex, Multi-Party Disputes. ADR Quarterly: ADR Section of the State Bar of Michigan.  Engineering News Record (ENR). 2000. Arbitrators found on the web. ENR, 245 (7): 37. Federal Facilities Council (FFC). 2007. Reducing Construction Costs: Uses of Best Dispute Resolution Practices by Project Owners. Proceedings Report Federal Facilities Council Technical Report No. 149, The National Academies Press, Washington, D.C. ISBN: 0-309-66549-3, 68  Federal Highway Administration (FHWA). 2006. Design-build effectiveness study—As required by TEA-21 Section 1307(f). Final Rep. Congress, Washington, D.C.  Florida Department of Transportation (FDOT). 2004. Design Build Program Evaluation- Evaluation for July 1996 – June 2003 Project Management, Research & Development Office Gransberg, D. D., Datin, J. and, K. R. Molenaar. 2008. Quality Assurance in Design-Build Projects: A Synthesis of Highway Practice. National Cooperative Highway Research Program Synthesis 376. American Association of State Highway & Transportation Officials  with the Federal Highway Admin.  Gransberg, D. D  and Molenaar, K. R. 2004. Analysis of Owner’s Design and Construction Quality Management Approaches in Design/Build Projects. J. of Manage. in  Engineering, 20(4): 162–169 Klinger, M. 2009. Confronting Construction Conflicts. Electrical Construction &  Maintenance,108(3): 14 Konchar, M. and Sanvido, V. 1998. Comparison of U.S. Project Delivery Systems. J. Constr. Eng. Manage., ASCE 124 (6): 435-444.  Mante J., Ndekugri I., Ankrah N. and Hammond F. 2012. The influence of procurement methods on dispute resolution mechanism choice in construction. Procs 28th Annual ARCOM Conference, Edinburgh, UK, Association of Researchers in Construction Management, 979-988. Minchin, R., Jr., Li, X., Issa, R., and Vargas, G., 2013. Comparison of Cost and Time Performance of DB and DBB Delivery Systems in Florida. J. of Constr. Eng.& Mgmt, 139(10), 04013007. Ndekugri, I. and Turner, A. 1994. ”Building Procurement by Design and Build Approach.” J. Constr. Eng. Manage., 120(2), 243–256. Neuendorf, K. 2002. The Content Analysis Guidebook. Thousand Oaks, California: Sage Publications. Shrestha, P. P., O'Connor, J. T., and Gibson Jr. G. E., 2012. Performance Comparison of Large Design-Build and Design-Bid-Build Highway Projects. J. Constr. Eng. Manage., 138 (1): 1-13.  Sigitas Mitkusa, T. M. 2013. Causes of conflicts in a construction industry: a communicational . Procedia - Social and Behavioral Sciences . Warne, T. R. 2005. Design Build Contracting for Highway Projects: A Performance Assessment. Tom Warne & Associates, LLC. Yates, J. K., and Smith, J. A. 2007. Global legal issues for engineers and constructors. J. of Professional Iss. in Eng. Educ. and Practice, 133(3): 199.        Yusof, A., Ismail, S., and Chin, L.S. 2011. Procurement Method as Conflict & Dispute Reduction Mechanism for Construction Industry in Malaysia. Int’l Proc. of Econ. Develp. & Research, 15: 215 228-10  Preliminary	  Investigation	  of	  the	  Impact	  of	  Project	  Delivery	  Method	  on	  	  Dispute	  Resolution	  Method	  Choice	  in	  	  Public	  Highway	  Projects	  	  Vancouver,	  BC	  June	  8,	  2015	  	  	  Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  2 •  Background	  •  Objectives	  •  Methodology	  •  Results	  &	  Analysis	  •  Conclusions	  Outline	  Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  10	  to	  30	  percent	  of	  construction	  projects	  have	  serious	  disputes	  	  	  1	  in	  4	  projects	  have	  claims	  	  	  Transactional	  costs	  for	  dispute	  resolution	  may	  total	  $4	  -­‐	  $12	  billion	  per	  year.	  	  3 (FFC 2007) Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	   Paradoxically,	  experts	  frequently	  refer	  to	  the	  construction	  industry	  as	  being	  on	  the	  	  innovative	  edge	  regarding	  dispute	  resolution	  4 (ENR 2000) Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  Is	  this	  TRUE???	  traditional	  PDMs	  and	  low	  bid	  process	  	  adversarial	  relationships	  	  	  	  alternative	  PDMs	  	  	  collaborative	  environments	  &	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  less	  disputes	  	  5 Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  6 Cost Time Quality Sustainability PDMs DISPUTES & DRMs Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  7 Design-Bid-Build Design-Build CMR PPPs, IPDs, …. PDMs DRMs Arbitration DRBs Negotiation Litigation Mediation Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  PDM	  research	  at	  a	  glance	  Performance	  assessment	  	  ž  time	  &	  cost	  performance	  of	  60	  projects	  from	  Florida	  DOT	  (Minchin	  et	  al.	  2013).	  ž  schedule,	  cost,	  quality,	  and	  owner	  satisfaction	  (Warne	  2005,	  Shrestha	  e	  al.	  2012).	  	  ž  how	  quality	  is	  handled	  in	  DB	  projects	  (Gransberg	  et.	  al.	  2008).	  ž  Arizona	  DB	  projects	  quality	  study	  (Ernzen	  and	  Feeney	  2002)	  ž  quality	  qualifications	  assessment	  in	  DB	  solicitation	  documents	  (Gransberg	  and	  Molenaar	  2004)	  	  ž  FHWA	  national	  study	  on	  DB	  contracting	  effectiveness	  from	  different	  states	  taking	  the	  lead	  on	  DB	  (FHWA	  2006)	  ž  ……	  8 Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  PDM	  &	  Disputes	  Federal	  Facilities	  Council	  (2007)	  compiled	  a	  report	  of	  presentations	  given	  by	  speakers	  who	  are	  experts	  in	  resolving	  construction	  disputes	  	  	  1.	  Presentation	  by	  Blumenfeld	  on	  Pentagon	  renovation	  ž  Projects	  transferring	  more	  risk	  to	  contractor	  &	  using	  	  low-­‐bid	  process	  >>>	  more	  prone	  to	  having	  claims.	  	  ž  Contracts	  should	  portray	  realistic	  risk	  assignment	  rather	  than	  convey	  bargaining	  powers	  of	  the	  parties.	  	  ž  Disputes’	  causes	  could	  be	  attributable	  to	  contracting/	  bidding	  strategy	  such	  as	  low	  bid	  process,	  poorly	  developed	  contracts,	  and	  lack	  of	  PM	  procedures	  9 Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  PDM	  &	  Disputes	  Federal	  Facilities	  Council	  (2007)	  compiled	  a	  report	  of	  presentations	  given	  by	  speakers	  who	  are	  experts	  in	  resolving	  construction	  disputes	  	  2.	  Presentation	  by	  Barshop	  on	  Methods	  for	  Reducing	  Claims	  ž  In	  contrary	  to	  perception	  that	  fewer	  claims	  are	  anticipated	  in	  shared	  risk	  contracts,	  no	  difference	  	  between	  shared	  risk	  versus	  contractor-­‐allocated	  risk	  contracts.	  	  ž  Arbitration	  encouraged	  inflated	  claim	  values	  while	  other	  forms	  such	  as	  DRBs	  and	  mediation	  did	  not	  affect	  claim	  frequency.	  10 Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  PDM	  &	  Disputes	  Two	  other	  studies,	  in	  Malaysia	  &	  in	  UK	  ž  Alternative	  PDMs	  reduced	  disputes	  frequency	  (Ndekugri	  and	  Turner	  1994,	  Yusof	  et	  al.	  2011).	  	  	  	  Study	  of	  DRM	  provisions	  in	  standard	  contract	  forms	  	  ž  Regardless	  of	  PDM,	  same	  dispute	  resolution	  provisions	  were	  used	  (Mante	  et	  al.	  2012)	  	  ž  Paper	  reinforced	  literature	  review	  >>>	  amount	  of	  research	  done	  related	  to	  PDM	  and	  dispute	  resolution	  is	  limited.	  	  11 Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  There	  are	  many	  DRMs,	  with	  varying	  hostility	  	  	  +	  	  many	  PDMs	  forms,	  some	  of	  which	  assumed	  to	  create	  collaborative	  environment	  less	  prone	  to	  disputes.	  	  	  	  	  	  No	  consolidated	  research	  conducted	  to	  investigate	  the	  effect	  of	  PDMs	  choice	  on	  selection	  of	  DRMs	  or	  process,	  especially	  as	  related	  to	  public	  highway	  projects.	  12 Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  Objectives	  Conduct	  a	  preliminary	  investigation	  on	  how	  	  PDMs’	  choice	  has	  affected	  Department	  of	  Transportation	  (DOTs)	  selection	  of	  dispute	  resolution	  methods	  (DRM)	  	  	  	  	  13 Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  Literature	  Review	  Data	  Collection	   Data	  Analysis	  Qualitative	  Study	  Content	  Analysis	  	  3	  State	  DOTs	  Research	  Methodology	  14 Colorado	   Florida	   Ohio	  Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  15 State	  DOT	   Specification	  document	  -­‐	  Issue	  Date	  Traditional	  project	  delivery	   DB	  project	  delivery	  Colorado	   -  Standard	  Specifications	  for	  Road	  and	  Bridge	  Construction	  –	  2011	  -  Standard	  Special	  Provision	  revising	  CDOT’s	  Standard	  Specifications	  for	  Road	  &	  Bridge	  Construction-­‐	  11/6/2014	  RFP	  documents	  (Book	  1	  DB	  Contract	  Provisions)	  for	  the	  following	  projects:	  -  I-­‐25/Cimarron	  Street	  (US	  24)	  -­‐	  2014,	  	  -  I-­‐25	  North	  -­‐	  2012	  -  SH	  285	  Reconstruction	  -­‐	  2008	  Florida	   -  Standard	  Specifications	  for	  Road	  &	  Bridge	  Construction	  -­‐	  	  01/2015	  -  Design-­‐Build	  Specifications	  –	  09/08/2014	  Ohio	   -  Construction	  and	  Material	  Specifications	  –	  01/01/2013	  -  Revisions	  to	  2013	  Construction	  &	  Material	  Specifications	  for	  DB	  Projects–12/31/2012	  	  Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  16 State	  DOT	   Specification	  document	  -­‐	  Issue	  Date	  Traditional	  project	  delivery	   DB	  project	  delivery	  Colorado	   -  Standard	  Specifications	  for	  Road	  and	  Bridge	  Construction	  –	  2011	  -  Standard	  Special	  Provision	  revising	  CDOT’s	  Standard	  Specifications	  for	  Road	  &	  Bridge	  Construction-­‐	  11/6/2014	  RFP	  documents	  (Book	  1	  DB	  Contract	  Provisions)	  for	  the	  following	  projects:	  -  I-­‐25/Cimarron	  Street	  (US	  24)	  -­‐	  2014,	  	  -  I-­‐25	  North	  -­‐	  2012	  -  SH	  285	  Reconstruction	  -­‐	  2008	  Florida	   -  Standard	  Specifications	  for	  Road	  &	  Bridge	  Construction	  -­‐	  	  01/2015	  -  Design-­‐Build	  Specifications	  –	  09/08/2014	  Ohio	   -  Construction	  and	  Material	  Specifications	  –	  01/01/2013	  -  Revisions	  to	  2013	  Construction	  &	  Material	  Specifications	  for	  DB	  Projects–12/31/2012	  	  1)  how	  DOTs	  define	  the	  word	  ‘claim’	  and	  ‘dispute’	  2)  process	  that	  precedes	  resorting	  to	  formal	  DRM,	  if	  stated	  3)   formal	  DRM	  employed.	  	  Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  FDOT	   ODOT	  DISPUTE CLAIM How	  DOTs	  define	  the	  word	  ‘Claim’	  and	  ‘Dispute’?	  17 CDOT	  	  …	  disagreement	  concerning	  contract	  interpretation,	  price,	  time,	  or	  all	  three	  between	  parties	  at	  project	  level	  regarding	  or	  relating	  to	  Contract”	  A	  separate	  demand	  by	  Contractor	  for:	  	  (i)  time	  extension	  disputed	  by	  CDOT,	  or	  	  (ii) payment	  of	  money	  or	  damages.	  	  	  A	  claim	  will	  cease	  to	  be	  a	  claim	  upon	  resolution	  No	  definition	  found	  	  …	  written	  demand	  submitted	  to	  the	  Department	  by	  Contractor	  …	  seeking	  additional	  monetary	  compensation,	  time,	  or	  other	  adjustments	  to	  Contract,	  entitlement	  or	  impact	  of	  which	  is	  disputed	  by	  the	  Department.	  Disagreements,	  matters	  in	  question	  and	  differences	  of	  opinion	  between	  the	  Department’s	  personnel	  and	  the	  Contractor.	  Disputes	  that	  are	  not	  settled	  through	  initial	  steps	  of	  DR	  &	  Administrative	  Claim	  Process.	  	  The	  Dispute	  becomes	  a	  Claim	  when	  the	  Contractor	  submits	  a	  Notice	  of	  Intent	  to	  File	  a	  Claim.	  	  Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  What	  is	  (1)	  the	  process	  that	  precedes	  resorting	  to	  formal	  DRM,	  if	  stated	  and	  (2)	  the	  formal	  DRM	  employed?	  18 ž  Colorado	  	  	  Partnering	  was	  listed	  as	  an	  integral	  process	  in	  DB	  projects	  	  but	  not	  in	  DBB	  projects.	  	  Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  What	  is	  (1)	  the	  process	  that	  precedes	  resorting	  to	  formal	  DRM,	  if	  stated	  and	  (2)	  the	  formal	  DRM	  employed?	  19 ž  Florida	  DBB:	  other	  than	  DRB	  to	  be	  used	  under	  specific	  work	  disputes-­‐>>>	  no	  mention	  of	  DRM	  if	  contractor	  is	  not	  in	  agreement	  with	  engineer’s	  decision	  	  DB:	  non-­‐binding	  DRB	  added	  as	  an	  option	  to	  be	  used	  generally.	  	  Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  What	  is	  (1)	  the	  process	  that	  precedes	  resorting	  to	  formal	  DRM,	  if	  stated	  and	  (2)	  the	  formal	  DRM	  employed?	  20 ž  Ohio	  ODOT	  did	  not	  amend	  the	  dispute	  resolution	  section	  in	  its	  DB	  specification.	  	  Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  Survey	  General	  Information	  21 Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  ž  Some	  states	  must	  be	  acknowledging	  alternative	  PDMs	  necessitate	  use	  of	  a	  more	  amicable	  dispute	  resolution	  process	  while	  others	  are	  using	  mitigation/partnering	  efforts	  regardless	  of	  PDM.	  	  ž  A	  stepped	  process	  in	  general	  is	  preferred	  in	  all	  states	  with	  some	  form	  ADR	  (DRB	  &	  mediation)	  being	  used	  before	  resorting	  to	  litigation.	  	  ž  This	  study	  addresses	  an	  important	  knowledge	  gap	  and	  paves	  the	  way	  for	  future	  in-­‐depth	  studies	  regarding	  dispute	  prevention	  and	  minimization	  and	  alternative	  PDMs.	  22 Conclusions	  Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  ž  External	  validity	  of	  study	  is	  limited	  to	  three	  states	  DOTs	  (Colorado,	  Florida,	  and	  Ohio);	  	  ž  This	  study	  was	  limited	  to	  conducting	  content	  analysis	  on	  current	  documents	  and	  lacks	  empirical	  support	  ž  This	  study	  just	  looked	  at	  DRMs	  provided	  by	  owners	  and	  does	  not	  provide	  any	  insight	  towards	  the	  behavior	  of	  stakeholders	  in	  a	  project.	  	  23 Limitations	  Background	  Results	  &	  Analysis	  Conclusions	  Objectives	  Methodology	  Recommendations	  ž  Test	  statistically	  	  the	  hypothesis	  that	  more	  integrated	  PDMs	  provide	  more	  collaborative	  environment	  and	  as	  a	  result	  reduce	  potential	  of	  disputes	  in	  a	  project.	  ž  How	  choice	  of	  a	  stepped	  process	  affect	  claim	  frequency	  and	  number	  of	  claims	  that	  move	  to	  litigation	  and	  how	  the	  stepped	  process	  help	  reduce	  number	  of	  claims	  in	  DOTs	  compared	  to	  others.	  	  24 THANK	  YOU…	  

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