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T T H H E E S S C C O O P P E E BUFFALO/WESTERN NEW YORK CHAPTER CHARTERED IN 1958 INCORPORATED 1966 Construction Specifications Institute, Inc. www.csinet.org MAY 2015 Buffalo/WNY website: csibuffalo.wix.com May Luncheon and Membership Meeting May 14, 2015; 12:00 PM DIRTT – BUILD BETTER How prefabricated construction solutions can help us build better Nina Lewis, LEED AP 1 CEU Ramada Hotel and Conference Center 2402 North Forest Road, Amherst NY Meal choices: Turkey Reuben, Chicken Caesar Salad or Pulled Pork Cost: No Charge to CSI Members Non-Members $ 10.00 RSVP with DONNA at 875-4627 or [email protected] Give your name, firm and menu choice RESERVATIONS MUST BE MADE BY FRIDAY 4:00 PM, May 8 th , 2015 (CANCELLATIONS NO LATER THAN 4:00 PM MONDAY, OR NO SHOWS WILL BE BILLED)

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Page 1: Cover May 2015files.ctctcdn.com/55ce3250301/b833164a-8ad2-4a2c-b4ee-303f93bdef6d.pdfSIKA SARNAFIL + VMZINC + DRI-DESIGN JIM CORCORAN 315-283-3705 Firm/Company Name: Spec Division or

                          

 

 

                          TTHHEE  SSCCOOPPEE

                        BUFFALO/WESTERN NEW YORK CHAPTER                                                                                              CHARTERED IN 1958  INCORPORATED 1966 

 

Construction Specifications Institute, Inc. www.csinet.org MAY 2015 Buffalo/WNY website: csibuffalo.wix.com

May Luncheon and Membership Meeting May 14, 2015; 12:00 PM

DIRTT – BUILD BETTER

How prefabricated construction solutions can help us build better Nina Lewis, LEED AP

1 CEU Ramada Hotel and Conference Center 2402 North Forest Road, Amherst NY

Meal choices: Turkey Reuben, Chicken Caesar Salad or Pulled Pork

Cost: No Charge to CSI Members Non-Members $ 10.00

RSVP with DONNA at 875-4627 or [email protected] Give your name, firm and menu choice

RESERVATIONS MUST BE MADE BY FRIDAY 4:00 PM, May 8th , 2015

(CANCELLATIONS NO LATER THAN 4:00 PM MONDAY, OR NO SHOWS WILL BE BILLED)

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2    The Scope  

CHAPTER OFFICERS FY 2015 President – Deborah J. Siener, RA, CSI, CDT, LEED AP BD & C Kideney Architects, PC

Secretary - Robert H. Rumpl, AIA, CSI Trautman Associates

Treasurer – Joanne S. Harris, CSI Marvin Windows and Doors

Immediate Past President, Advisor to the Board – Kevin J. Mahoney, CSI

Baer & Associates, LLC Region Director - Anthony E. Gorski, AIA, CSI Kideney Architects, PC

COMMITTEE CHAIR Program – Kelli Hazlett, CSI Construction Exchange of BWNY

Education - Ted Czajkowski, CCS, CSI Retired

Awards – Jennifer Hill BECxP, CSI, LEED AP Wendel.

Certification - Kevin M. O’Beirne, PE, CCS, CCCA, CSI ARCADIS U.S., Inc.

Electronic Communications - Alexander P. Grande, CSI, CDT Kideney Architects, PC

Membership - Brad Vaillancourt, RA, LEED AP, CSI Trautman Associates

DIRECTORS James Grucella, CSI – Thermal Foams, Inc. Christopher Picone, CSI – Picone Construction Joanne S. Harris, CSI – Marvin Windows and Doors Brad Vaillancourt, CSI – Trautman Associates Ted Czajkowski, CSI –Retired Jennifer Hill, BECxP, CSI, LEED – Wendel EDITOR James Grucella, CSI Thermal Foams Inc. 5575 Big Tree Rd., Orchard Park, NY 14127-2206 NORTHEAST REGION President - Tracey Powell. CSI Director – William C. DuBois, CSI, CCS [email protected] EDITORIAL POLICY “THE SCOPE” is published as the official newsletter of the Buffalo-Western New York Chapter Construction Specifications Institute. It may also be used to exchange information and opinions. Contributions of articles from readers are welcome when proper sources are identified, but neither the Editor nor the Chapter assumes responsibility for the validity of accuracy of such articles. Any part of this newsletter may be reproduced by other CSI chapters, giving proper source identification. The appearance of any article, advertisement, product, service, names, picture, opinion or assertion does not constitute endorsement by the Chapter or its members. Contributions should be in the Editor’s office by the third Tuesday of the month.

CONTACT 716-636-9700 716-883-4400 716-662-2554 716-881-0000 716-636-9700 CONTACT 716-874-3435 716-883-3716 716-888-0766 716-667-6667 716-636-9700 716-883-4400 CONTACT 716-997-6320 716-634-9994 716-662-2554 716-883-4400 716-883-4400 716-688-0766 CONTACT 716-997-6320 CONTACT 401-525-6684

Northeast Region Conference 

The Art of Sustainability 

Williamstown MA 

May 14‐16, 2015 

http://ner.csinet.org  

for information and registration 

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3    The Scope  

 

The Unexpected Journey By President Deb Siener

As we wind down the CSI year, a group of board members are preparing to travel to Williamstown Massachusetts for the North East Region Convention. I have only attended one convention and it was very informative and a great deal of fun meeting so many folks from the region! I highly recommend attending if you ever have the opportunity. Congratulations to Jim Grucella as he is to receive the North East Region Distinguished Service Award. It is well deserved as he has not only worked tirelessly for the chapter but held regional offices as well. He is known as “The Candy Man” because he always has a bag of chocolates at gatherings and he also donates bottles of his delicious homemade wine to be auctioned to help fund scholarships. I believe he fetched over $400 for the last event. We have our June outing planned for Thursday June 11, 2015 at 5:30 when we will enjoy a tour of City Hall, followed by food and beverage at a local establishment. This too is a fun thing to do as we spend an evening with fellow members and significant others. There is a lot to be gained in the more casual setting. The April luncheon was very informative. S5 had some impressive videos of snow avalanching off of roofs and was like watching America’s Funniest Home Videos; of course, it made me cringe to watch them. May is the last luncheon and Scope of the season. If I don’t see you at the June outing, have a great summer! See you in September with more adventures of the Unexpected Journey.  

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4    The Scope  

 

New Member Profiles

Kelli Hazlett Pre-bid Reporter Construction Exchange of WNY 2660 William Street, Cheektowaga, New York 14227 716-874-3435, 716-875-4412 (f), 585-993-5394 (cell) [email protected] Company Services: Builder’s Exchange Responsibilites: As a Pre-bid Reporter, it is my job to find construction projects long before bidding. I use many different outlets to find information including local newspapers, social media, and contacting architects and engineers. Interests: I am a huge dog lover. I have a 5 year-old Boxer named Sprocket. My favorite hobby is riding four-wheelers with my friends. During the summer we ride almost every week-end from sunrise to sunset. Kelley Boyle Technical Sales Consultant WR Grace PO box 8691, Trenton, New Jersey, 08691 609-208-3589, 609-208-3590 (f), 201-360-9052 (cell) [email protected] www.na.graceconstruction.com Company Services: Building Envelope products including Waterproofing, Air Barriers and Roofing Responsibilities: Architectural and Field Consulting Interests: Married in October 2014 and bought a house in Central New Jersey with my husband. I love to travel and when I cannot be traveling, I enjoy yoga and any time at the beach. I have enjoyed working at Grace and have been excited by the diverse types of projects in which I have been involved.

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5    The Scope  

The importance of being earnest  Sheldon Wolfe, RA, FCSI, CCS, CCCA, CSC

A couple of months ago, in "Your slip is showing!", I mentioned that I had been specifying slip resistance for a very long time, but only recently became aware of a serious problem: Even though codes other regulations require a "slip-resistant" finish, there is no definition of what that means. I encountered a similar situation recently while reviewing the titles of the many standards cited in our specifications: I discovered that ANSI (the American National Standards Institute) produces no standards! While looking up hardware standards, I saw reference standards with the number 115 in virtually every hardware and hollow metal specification I found. Sometimes the 115 was preceded with an A, other times not. But it's only one letter; what's the big deal if it has an A or not? The reference numbers I found were inconsistent, so I set out to discover exactly which standard or standards were intended. As we so often find in the world of construction, there is a lack of consistency. I saw titles of some standards appear both with and without ANSI, titles that appear with only ANSI, and titles that have only a number, with no indication of the issuing organization. I found titles with different combinations of ANSI with another organization, and I found references to standards that have been withdrawn or replaced. Many of these specifications referred to ANSI A115, but others, including manufacturers' guide specifications, refer simply to "ANSI 115", for what appeared to be the same standard. My first step was to visit the ANSI website, which allows a search of their records. I found no standard titled ANSI 115, but as I expanded my search I found references to several standards related to doors that include A115 in their titles.

ANSI A115 Hardware Preparation in Steel Doors and Steel Frames

ANSI/BHMA A156.115 Hardware Preparation in Steel Doors or Steel Frames

ANSI/DASMA 115 Standard Method for Testing Garage Doors

ANSI/DHI A115 Specifications for Hardware Preparations in Standard Steel Doors and Frames.

ANSI/DHI A115.IG Installation Guide for Doors and Hardware

ANSI/SDI A115.1 (no title specified)

BHMA A115 Specifications for Steel Door and Frame Preparation for Hardware

BHMA A115 Steel Door Preparation Standards

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6    The Scope  

With the exception of the ANSI/DASMA standard, it appears all of these may be the same. Is it possible that they're all correct? The most interesting thing I learned was that ANSI does not produce standards. Rather, it accredits the procedures of organizations that develop standards, verifying that they meet certain requirements. During more than thirty years as an architect, I have seen countless standards with designations such as ANSI/ACI, ANSI/BHMA, ANSI/DASMA, and so on. I also have seen many standards that did not include ANSI in the title. My perception was that those standards with ANSI in the title were jointly issued by ANSI and the other organization, while those that did not include ANSI were issued solely by the indicated organization. And, because I saw many standards that included only ANSI, I assumed those standards were issued by ANSI.

My investigation revealed that references to standards are far too casual, and too often incorrect. However, despite the many incorrect titles used, it seems there have been few problems, probably because the people who write and use these sections are familiar with what's in the standards. Even so, manufacturers should cite only active standards, and use the proper titles and revision dates in their guide specifications and other publications. One letter can make the difference between being Ernest, and merely being earnest. © 2015, Sheldon Wolfe, RA, FCSI, CCS, CCCA, CSC Agree? Disagree? Leave your comments at http://swspecificthoughts.blogspot.com/ Your slip is showing! http://bit.ly/1vYNZ0u

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7    The Scope  

May Program  

  

DIRTT — DOING IT RIGHT THIS TIME We create customizable, sustainable architectural interiors. At DIRTT’s core is a set of robust interface elements that support reconfi guration, extreme levels of customization, and distributed manufacturing. DIRTT’s solutions include DIRTT Walls, DIRTT Millwork, DIRTT Power and DIRTT Networks, along with cutting-edge ICE® technology, and ICEberg®, a powerful modular vs. traditional construction cost-comparison tool. DIRTT Walls are open to more function and more customization than any other in the industry, giving designers virtually unlimited freedom. The patented wall elements allow work surfaces, overheads, displays, and any other object to be mounted seamlessly off the surface, without damage. The walls support legacy and new furniture, are reconfi gurable, and easily refinished to suit future needs.

Please see the attached article “Clearing Up Changes Claims and Disputes” from our own Kevin O’Beirne attached to this issue.

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8    The Scope  

SCOPE SPONSORS

YOU TOO COULD BE

A SCOPE SPONSOR

DarDrill, Inc. Specialty Drilling Contractors

ROBERT (BOB) HENLEY, CSI 716-634-0484

JOHN H. BLACK COMPANY, INC.

“THE BRICK PEOPLE” FACE BRICK, STONE, AND PAVERS

(716) 632-6693 LARRY IZYDORCZAK, CSI

BUILDING ENVELOPE TECHNOLOGIES

SIKA SARNAFIL + VMZINC + DRI-DESIGN

JIM CORCORAN 315-283-3705

Firm/Company Name:

Spec Division or Type of Business:

Member’s Name or other:

Telephone:

Number of issues:

The Scope Newsletter The Construction Specifications Institute Buffalo – Western New York Chapter 2660 William Street Cheektowaga, NY 14227

Mail to:

FIRST CLASS MAIL

OUR SPONSORS & ADVERTISERS ARE WORTHY OF YOUR

CONSIDERATION

BE A SPONSOR OF THE SCOPE For as little as $50.00 for ten issues for a listing of your business name, type of business or specification division, member’s name and telephone number. Ad size: 2 ½ inch x 1 inch. OR for $75.00 for ten issues a calling card or calling card sized ad can be placed on the inside pages of the SCOPE. Ad size: 3 ½ inch x 2 1/8 inch. Please fill out the application below or attach a calling card and mail with your check to: Jim Grucella, CSI SCOPE Editor 5575 Big Tree Rd... Orchard Park, New York 14127

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COURSE NAME Build Better with Prefab Interior Construction

COURSE INFORMATIONAIA – DIRTTE7 – LU/HSW – good for 1.0 creditIDCEC – CEU – 103781 – good for 0.1 credit

COURSE DELIVERY FORMATFace to face, interactive course with PowerPoint presentation

COURSE DESCRIPTIONThis course explores a new generation of prefab modular interiors that meet today and tomorrow’s project needs, delivering exceptional return on investment to clients. Advantages of prefab interiors include faster project delivery, cost savings, quality construction and ability to respond to health, safety and welfare considerations. Design professionals will appreciate prefab’s ability to deliver a consistent, high quality aesthetic and respond to unpredictable and changing project conditions. The course examines the impact of this type of interior construction on the design and construction phases, in terms of drawings, fit with BIM approaches, acoustics and technology integration.

OBJECTIVES1. Understand the advantages of prefab interior

construction in terms of faster project delivery, cost savings, quality construction, and health, safety and welfare

2. Analyze how prefab modular construction delivers from a productivity and ROI perspective, including healthier interiors and safer construction

3. Explore prefab’s impact in terms of design and construction drawings, fit with BIM approaches, acoustics and technology integration

4. Investigate the design aspects of prefab assemblies to appreciate their agility and ability to grow and change with clients

COURSE LENGTH1.0 hour

AUDIO/VISUAL REQUIREDScreen, projector, laptop c/w presentation, clip-on microphone for larger audiences

Course Overview

Build Better with Prefab Modular Interior Construction

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Article for The Scope (May 2015 issue) newsletter of the

Construction Specifications Institute’s Buffalo-Western NY Chapter

Clearing Up Changes, Claims, and Disputes

by Kevin O’Beirne, PE While many owners, contractors, architects, and engineers are familiar with amicably- (well, usually) negotiating change orders on construction projects, the use of and process for claims and dispute resolution is often less well-understood. More important, the claims and disputes process is complied with even less-frequently. This article attempts to shed light on the basics of these important, and sometimes complex, contractual processes. When implemented properly, the process for claims and disputes supports the orderly, timely resolution of construction issues on which the owner and contractor disagree. Conversely, when claims and disputes processes are improperly implemented or ignored, the project can become very challenging, attorneys inevitably become involved, costs increase, profitability plummets, and relationships and reputations—not to mention the stress level of the individuals involved—can suffer. When one claim or dispute follows the next, bad feelings can ensue that make the balance of the project even more difficult. In short, if the rules are understood and followed, difficult matters will be successfully resolved faster, for less cost, and with less stress. Location in the Construction Contract Documents CSI’s MasterFormatTM does not include any document number/title assignments in the Specifications Group (Divisions 01-49) for claims and dispute resolution procedures. Instead, the processes for filing and resolving claims, and for dispute resolution, are set forth in the construction contract’s General Conditions, which may be modified or augmented in the Supplementary Conditions. The standard contract documents of the American Institute of Architects (AIA), Engineers Joint Contract Documents Committee (EJCDC), Design Build Institute of America (DBIA), and others are so organized. This is further supported by AIA® A521TM/EJCDC® N-122, Uniform Location of Subject Matter (2012). The Basics: Changes to Claims to Disputes The journey to a dispute on a construction project usually starts simply: It’s when an issue arises that prompts a change in the work or a difference of opinion between the parties (owner and contractor). This usually results in a “change issue”; often a contractor-prepared “change proposal” is submitted to the architect or engineer for review, negotiation, and ultimately a recommendation to the owner on whether to accept the change. The result is typically a

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Change Order (e.g., a contract document that, when executed by the parties, changes the contract price, contract times, or both, and makes other changes to the contract). Unless stipulated in the Specifications, the contract documents typically do not place restrictive time frames on change issue and the Change Order process. Either party may file a “claim” against the other. Claims often arise from failed efforts to reach an amicable, negotiated settlement of a change issue, but can arise without an initial change proposal. The matter becomes a “claim” when the parties have a substantial disagreement and submit the disagreement for resolution via a formal process established in the contract documents. Claims resolution typically have stipulated time limits in which the claim is to be submitted, evaluated, and a decision rendered on entitlement (e.g., “who gets what” in the resolution of the claim). Claims should typically escalated beyond the project manager level in the contractor’s, owner’s, and architect’s or engineer’s organization. Often, higher-level and more-experienced personnel in these entities will become involved to resolve the impasse that resulted in the claim. The end of the claims process is a written decision on entitlement. Should either party (owner or contractor) decide to not accept the decision on entitlement, the claim may be escalated to become a dispute. By this time, each party typically has its

attorneys and executives involved and the dispute resolution process becomes more-expensive, stressful, and challenging. Like claims, dispute resolution typically proceeds in accordance with a process indicated in the contract documents, which often cite the rules of a particular, industry-recognized dispute resolution procedure. Claims and most types of alternative dispute resolution are performed within contractually-stipulated times so that the claim or dispute is resolved as promptly as possible based on its own

merits. Often, the longer a claim or dispute goes unresolved, the potential increases for other issues to crop up and muddy the waters around the claim or dispute, reducing the potential to resolve the matter on its own merits. Thus, a matter can arise initially as a change issue, can escalate to a claim, which in turn can become to a dispute. Consistently complying with the contractual procedures is always a good idea. Casting the processes aside for convenience, or due to ignorance, may result in an inability later to enforce other provisions, particularly those that would normally allow rejection of a claim for procedural non-compliance. Change Issues Until the release of the 2013 edition of EJCDC® C-700, Standard General Conditions of the Construction Contract, the process for the parties to amicably negotiate a change issue was not memorialized in the standard General Conditions widely used in the industry. Such procedures, when specified at all, were usually in the Division 01 Specifications, such as Section 01 26 00, Contract Modification Procedures. More typically, they were merely assumed and some type of Change Order process was usually “common knowledge” in the industry.

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EJCDC® C-700 (2013) established a procedure, largely at Paragraph 11.06, for the parties to resolve change issues without incurring the stigma of a “claim”. Among other requirements of this provision, change proposals are to be submitted by the contractor within 30 days of the event giving rise to the change, and the engineer is to evaluate the change proposal impartially and render a written decision within a 30-day time. The process is similar to that formerly used for claims in EJCDC® C-700 (2007 and earlier) but is implemented by the owner’s, contractor’s, and engineer’s day-to-day project personnel, typically without the involvement of attorneys. As of this writing, no other standard General Conditions in wide use in the industry have a detailed procedure for resolving change issues at the project team level. The Claims Process The process of submitting and resolving a formal, written claim is addressed in AIA® A201TM, Standard General Conditions of the Contract for Construction (2007), in Sections 15.1 and 15.2; in EJCDC® C-700 (2013), Article 12; and in DBIA 535, Standard Form of General Conditions of Contract between Owner and Design-Builder (2010), Sections 10.1 through 10.2.3. How does the receiving party know when it’s a “claim” rather than correspondence continuing the difference of opinion on a change issue? A claim should be clearly identified as such, preferably including in its opening paragraph words such as, “This is a Claim submitted in accordance with Paragraph [citation] of the General Conditions”, or similar language. Use of such wording puts the receiving party and other stakeholders, such as the architect or engineer, clearly on notice. When the receiving party is uncertain whether a written demand for a change in price, time, or other relief under the contract is, in fact, a “claim”, the intent should be clarified immediately in writing, such as requesting the claimant to specifically indicate in writing whether the item is a “claim in accordance with Paragraph [citation] of the General Conditions”. This will reduce the potential for misunderstandings and helps to ensure that the claim is handled properly and in accordance with the contract’s requirements. Properly identifying the matter as a claim is an important first step in the claims process. Claims are typically a “notice” under the contract documents, and thus are to be submitted in accordance with the notice provisions of the General Conditions (AIA® A201TM Section 13.3; EJCDC® C-700 (2013) Paragraph 18.01; DBIA 535 (2010) Section 13.8). Such provisions require that notices be delivered in one of a few specified ways, including the options of certified mail/return receipt requested, and in-person delivery at the recipient’s business address indicated in the owner-contractor Agreement. However, it is also common that claims are delivered by means other than the notice requirements of the contract, and care should be taken to deliver such notices properly lest they be considered invalid due to the technicality of their delivery method. AIA® A201TM (2007 and earlier) and EJCDC® C-700 (2007 and earlier) stipulated similar approaches for resolving claims, whereby the claimant submits their claim notice, usually within 30 days of the event giving rise to the claim, to an entity called the “initial decision maker” (IDM). In AIA’s 2007 documents, the person or firm serving as the IDM is to be identified in the owner-contractor Agreement; when an independent third-party IDM is not so identified, the architect serves at the IDM. EJCDC’s documents have never used the term “initial decision maker”,

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although prior to the 2013 edition of EJCDC® C-700 the engineer served in the same role as AIA’s IDM in the claims process. The IDM essentially serves as investigator, judge, and jury in the claim and renders a written decision on entitlement. The time limit for the IDM to issue its decision is usually 30 days after the IDM’s receipt of the information submitted by the claimant. For the claims process to be fair and to reduce the potential for expensive disputes, it is very important that the IDM render its decisions impartially, which can be challenging when the IDM is the architect or engineer and the owner is their client. Such circumstances can set up expectations by the owner that, in its decision on the claim, the architect or engineer will look more-favorably on the owner’s position, and may even pressure the architect or engineer to do so—possibly introducing bias into the decision on entitlement. Furthermore, to provide a playing field that is more-slanted in the owner’s favor, some owner-prepared, non-standard contracts set up the owner itself as the IDM, which many contractors understandably consider to be unfair. (Such provisions are often drafted by the owner’s attorney, and attorneys typically champion their client in a partisan manner because it’s their job to do so.) In an effort to reduce the architect’s inherent, potential conflict of interest, AIA’s 2007 documents created the option for the IDM to be an “independent” third-party, although the potential for the IDM to be pressured by the owner still exists. EJCDC® C-700 (2013) took a more-radical approach to resolving such potential conflicts of interest by removing the IDM (e.g., the engineer) altogether from a formal role in the claims process, and requiring the owner and contractor to negotiate the claim directly and in good faith. The claims resolution process under DBIA 535 (2010) is similar to that of EJCDC® C-700 (2013), although such arrangements for claims resolution are fairly common in design-build contracts. EJCDC® C-700’s (2013) claims process does not stipulate a time limit in which the claim must be resolved; the negotiation between the parties may take as long as the parties mutually desire. However: · At any time after initiation of a claim, by mutual agreement the parties may submit the claim

for the first form of dispute resolution (i.e., mediation).

· At any point in the claims process, the receiving party may reject the claimant’s claim and thus set the stage for the claimant to file for dispute resolution.

· If the receiving party does not respond to the claim within 90 days, in accordance with the General Conditions, the claim is deemed to be denied in whole, unless the claimant submits written notices for dispute resolution.

Although under EJCDC® C-700 (2013) the engineer is not a decision maker at the claims level, there is no reason that the engineer cannot continue to be involved, presumably by providing technical assistance to its client, the owner. It is advisable that the individuals in the engineer’s organization that reviewed and rendered a decision on the change proposal that led to the claim should, optimally, not be the only people assisting or advising the owner on the claim for the same issue. Claim resolution assistance may be enhanced by involving one or more of the engineer’s experienced staff members or executives who are not part of the engineer’s project team on a day-to-day basis. Alternatively, either side may elect to retain the services of a claims consultant, which is a specialized form of consulting practice in the construction industry.

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Claims consultants assist their clients in evaluating claims and reaching settlements before the claim goes to dispute resolution. Dispute Resolution Dispute resolution may be initiated by either party upon completion of the claims process. Notice of intent to pursue dispute resolution is to be filed with the other party within a set time (usually 30 days of the end of the claims process) and must be transmitted in accordance with the notice provisions of the contract.

Typically the architect or engineer has no formal role in dispute resolution, although the architect or engineer may continue to provide technical services to the owner in relation to a dispute. Such services, when performed, are typically “additional services” entitling the architect or engineer to additional compensation, although the potential of the architect or engineer recovering such costs is certainly reduced when the dispute arises from alleged design negligence. There are several alternative forms of dispute resolution, broadly grouped into two types: non-binding and binding. The further down the road an issue

progresses (e.g., change to claim to dispute) the process of resolving the issue becomes progressively more-expensive, with litigation in court usually being the most-costly approach. For this reason, many entities, including AIA, EJCDC, and DBIA (via their respective Standard General Conditions), favor non-binding methods as the first step in dispute resolution. AIA, EJCDC, and DBIA each require mediation (which is non-binding) as a condition precedent to initiating binding dispute resolution. Mediation entails an independent third-party facilitator who endeavors to discover the facts about the claim and works to help the parties achieve a negotiated solution. Standard General Conditions typically stipulate that mediation is to be concluded within a specified time, usually 60 days. Mediation is conducted in accordance with established rules, which are typically referenced (but often not repeated) in the construction contract documents. The construction documents should indicate how the parties will share the costs of the mediator’s services. (A separate agreement will need to be executed between the mediator and the party hiring the mediator.) EJCDC® C-700 (2013) does not stipulate a particular mediation process and model language for mediation is not included in EJCDC® C-800 (2013), Guide to the Preparation of Supplementary Conditions. Thus, either the specifier (as directed by the owner) may indicate the required mediation rules in the Supplementary Conditions using project-specific language, or the approach can be left for mutual agreement by the parties when and if necessary. AIA® A201TM (2007) requires use of the Construction Industry Mediation Procedures of the American Arbitration Association (AAA). DBIA 535 (2010) allows the parties to agree on mediation rules but requires that, should such an agreement be impossible, AAA’s Construction Industry Mediation Procedures are tol be used. As noted below, entities other than AAA also provide mediation services.

Dispute resolution, 18th Century style

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If the dispute is not resolved through mediation, depending on the requirements of the contract documents, final (binding) dispute resolution can be accomplished by any of the following means: 1) Implementing the final dispute resolution procedures specified (if any) in the Supplementary Conditions; 2) Implementing another form of final dispute resolution acceptable to both parties; or 3) Litigating in a court of competent jurisdiction. Binding dispute resolution is a process in which the dispute is resolved without appeal by the parties—it is the last stop on the change issue-claims-disputes railroad. The contract documents will often stipulate a binding form of final dispute resolution. EJCDC® C-700’s (2013) provision on final dispute resolution merely refers to the approach (if any) specified in the Supplementary Conditions, and EJCDC® C-800 (2013) includes model language for binding arbitration. AIA® A201TM and AIA® A503TM, Guide for Supplementary Conditions (2007), as well as DBIA 535 (2010), allow the parties to either agree on the method of final dispute resolution or to use AAA’s Construction Industry Arbitration Rules. While AAA is possibly the most commonly-used mediation and arbitration services provider in the United States, other entities providing similar services include JAMS, the CPR Institute for Dispute Resolution, and others. Those evaluating alternative providers of such services may find fees to be a differentiating factor. Aside from mediation and binding arbitration, other processes are available for dispute resolution, including disputes review board (DRB), non-binding arbitration, mini-trial, and, where enabled by law, judicial reference. DRBs appear to becoming increasingly popular, especially on larger projects. A DRB is a panel of experts, usually three in number, retained by the owner and contractor to meet periodically (often, monthly) during the construction phase to review change issues and claims and offer independent opinions that help the parties to reach agreement on each issue. No entity provides model language for all possible dispute resolution options. A recent addition to the industry’s model language arsenal is ConsensusDocs 200.4, Dispute Review Board (DRB) Addendum Specification (2013, used for requiring a DRB as the means of resolving disputes), and ConsensusDocs 200.5, Three-Party Agreement for Dispute Review Board (2013, used as the basis for the owner, contractor, and DRB members to enter into an agreement for DRB services).

Although litigation in court is a type of dispute resolution, it is frequently viewed as the least-attractive option because it can be protracted (with various levels of appeal), very expensive, has the greatest potential to result in undesirable publicity, and results in the parties losing control of the outcome. However, some public owners may prefer litigation in their local court, hoping for more-favorable outcomes from local judges and juries. On multiple occasions this author has encountered contractors who

threaten a lawsuit upon denial of a change proposal—essentially proposing to bypass the claims process and non-binding forms of alternative dispute resolution. In such cases, the owner and design professional should keep their cool and remember to enforce compliance with the claims process and dispute resolution procedures in the contract documents. This can help to keep emotions in check and contribute to the timely and proper resolution of disagreements.

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Conclusion This article has presented the basic process by which a change issue can become a claim and, subsequently, a dispute. The standard contract documents of AIA, EJCDC, and DBIA deal with claims and disputes in ways that are generally similar, but nevertheless allow differing levels of flexibility for the parties. When implementing a construction project, it is important to understand the differences between a change issue, claim, and dispute; to be aware of and comply with contractual procedures for filing and resolving such matters, and to involve others outside the day-to-day project team as the matter escalates.

Kevin O’Beirne, PE, CSI, CCS, CCCA is a Principal Engineer and Manager of Standard Construction Documents at ARCADIS in Buffalo, NY. He is a professional engineer licensed in New York State and Pennsylvania with 28 years of experience designing and constructing water and wastewater infrastructure. In addition to serving as the CSI Buffalo-Western NY Chapter Certification Chair, Kevin is the FY2014-2015 Chair of the Engineers Joint Contract Documents Committee (EJCDC, www.ejcdc.org) and is a member of CSI’s MasterFormat

Maintenance Task Team. He can be reached at 716.667.6667, [email protected].