Fundamentals of Construction Claims

Description

Cover Title Page Copyright Page Contents Acknowledgments Chapter 1 Introduction Step 1: Review the Dispute Resolution Procedure Step 2: Define the Type of Dispute Step 3: Fulfill Pre‐Claim Requirements and Notice Requirements Step 4: Establish Entitlement Step 5: Calculate Delay Step 6: Calculate Damages Step 7: Formatting and Packaging the Claim Step 8: Non‐Binding Dispute Resolution Step 9: Binding Dispute Resolution Other Topics Termination Claims Non‐Contract Claims Fault Allocation Summary Chapter 2 Step 1: Review the Dispute Resolution Procedure Standard Contract Forms for Owner–Contractor Agreements AIA A201 General Conditions, Article 15, Claims and Disputes ConsensusDocs 200, Standard Agreement and General Conditions Between Owner and Constructor C‐700, Standard General Conditions of the Construction Contract (2018 Version) Proprietary Contract Dispute Resolution Provisions for Owner–Contractor Agreements Standard Contract Forms for Contractor–Subcontractor Agreements AIA A401, Article 6, Claims and Disputes ConsensusDocs 750, Standard Agreement Between Constructor and Subcontractor EJCDC E‐523, Construction Subcontract Agreement (2018 Version) Standard Contract Forms for Owner–Designer Agreements AIA B101, Article 8, Claims and Disputes ConsensusDocs 240, Standard Agreement Between Owner and Design Professional EJCDC E‐500, Agreement Between Owner and Engineer for Professional Services (2020 Version) Standard Purchase Order Forms for Purchaser–Vendor Agreements AIA A152 and A152 Exhibit A, Article 8, Claims and Disputes ConsensusDocs 702 and 703, Purchase Orders Summary Notes Chapter 3 Step 2: Define the Type of Dispute Design Issues Administration Issues Performance Issues Third‐Party Issues Change Order Negotiation Issues Summary Chapter 4 Step 3: Fulfill Pre‐Claim Requirements and Notice Requirements Pre‐Claim Requirements Design Issues Administration Issues Performance Issues Third‐Party Issues Change Order Negotiation Issues Claim Notice Provisions Notice of Claim Provisions for General Claim Items Notice of Claim Provisions for Lack of Evidence of Owner's Financial Arrangements Notice of Claim Provisions for the Owner's Failure to Make Timely Payment to the Contractor Notice of Termination Provisions by the Contractor to the Owner Chapter 5 Step 4: Establish Entitlement Introduction Typical Contractor Claims Against Owners Owner Design Issues Administration Issues Owner Performance Issues Force Majeure Issues Change Order Negotiation Issues Typical Owner Claims Against Contractors Quality Issues Schedule Issues Administrative Issues Contractor Design Issues Contractor Impacts on Owner or Owner's Separate Contractors Change Order Negotiation Issues Typical Subcontractor Claims Against Contractors Design Issues Administrative Issues Owner or Contractor Performance Issues Force Majeure Issues Change Order Negotiation Issues Typical Contractor Claims Against Subcontractors Quality Issues Schedule Issues Subcontractor Administrative Issues Subcontractor Design Issues Subcontractor‐Caused Interference Change Order Negotiation Issues Typical Designer Claims Against Owners Designer Claim Against Owner for Additional Services Due to Owner's Change in Work Program Designer Claim Against Owner for Additional Services Due to Contractor Delays Designer Claim Against Owner for Additional Services Due to Contractor Maladministration Typical Owner Claims Against Designers Claim for Design Error or Design Omission Owner Claim for Designer Maladministration Owner Claim for Design Delays Summary Note Chapter 6 Step 5: Calculate Delay Contract Requirements for Time Extension Requests Scheduling Overview Types of Delays Concurrent Delays Pacing Delays Review of Forensic Scheduling Methodologies As‐Planned vs. As‐Built Analysis (Retrospective, Backward‐Looking) Windows Analysis (Retrospective, Forward‐Looking) 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 Time Impact Analysis (TIA) (Prospective or Retrospective, Forward‐Looking) Collapsed As‐Built Analysis (Retrospective, Backward‐Looking) Summary Notes Chapter 7 Step 6: Calculate Damages Methods to Calculate Damages Actual Cost Method Agreed Upon Cost Method Estimated Cost Method Modified Total Cost Method Markup on Damages Damage Categories Scope Change Damages Delay Damages Productivity Damages Acceleration Damages Consequential Damages Home Office Overhead Claim Lost Profits Due to Loss of Bonding Capacity Interest Claims Loss of Profit on Incomplete Work Notes Chapter 8 Step 7: Formatting and Packaging the Claim Overall Claim Report Outline Formatting Writing Style and Organization Be Factual, Clear, and Unemotional Active Voice vs. Passive Voice CRAC Method for Writing Organization Chapter 9 Step 8: Non‐Binding Dispute Resolution Introduction Prevailing Party Provisions Settlement Meetings Mediation Mediation Venue Mediation Statements Mediation Format Settlement Paperwork Learn from the Process Mediation Presentations The Mediation Process Is Purposefully Exhausting Chapter 10 Step 9: Binding Dispute Resolution Litigation Arbitration Discovery and Disclosures Witness Testimony When Can Expert Testimony Be Used? Requirements for Expert Testimony How Parties Can Exclude Expert Witness Testimony Deposition Testimony Deposition Rules Typical Deposition Testimony Process Recommendations for Deposition Testimony Be Mindful of the Following Scenarios During Depositions Deposition Testimony Used as Impeachment at Trial Trial and Arbitration Testimony Note Chapter 11 Termination Claims Termination for Convenience (Owner Termination of Contractor for Convenience) Calculation of the Final Payment Due to the Contractor Under a T for C T for C proposal T for C Provisions in Standard Contract Forms Termination for Cause (Owner Termination of Contract with Contractor) T for D Provisions in Standard Contract Forms (Termination by Owner) Key Procedural Provisions in Standard Bond Forms Termination for Cause (Contractor Termination of Contract with Owner) T for D Provisions in Standard Contract Forms (Termination by Contractor) Chapter 12 Non‐Contract Claims and Defenses Introduction Non‐Contract Claims Quantum Meruit Unjust Enrichment Negligence Breach of Implied Warranty Mechanic's Liens The Miller Act and the Little‐Miller Act Claims Non‐Contract Defenses to Breach of Contract Claims Estoppel Waiver Unconscionability Summary Chapter 13 Allocation of Damages Step 1 Defining the Issue in Dispute Step 2 Defining the Duties of the Various Parties Step 3 Is the Issue Patent or Latent in Nature? Step 4 Was the Defective Work Covered Up by a Subsequent Trade? Step 5 Did a Third‐Party Inspector Approve the Work? Step 6 Do the Contracts have Indemnification Clauses? Step 7 Identify the Responsibility of the Various Parties General Theory of Allocation Percentages Chapter 14 Conclusion Index EULA