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Construction Experts and Claims Consultants Articles List

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Constructive acceleration occurs when a delay takes place beyond a contractor's control, and yet the owner expects the job to be completed by the original contract completion date. A contractor's claim for constructive acceleration should meet the following criteria: The delay is a result of causes that would entitle the contractor to time extension under the contract The contractor requests time extension for the delay in a timely manner, in accordance with the contract The owner fails or refuses to grant a time extension to the contractor The owner requires the contractor to complete the work in accordance with the original schedule or indicates an intention to penalize the contractor for failing to complete the work in accordance with the original contract schedule The contractor then endeavors to accelerate by working additional hours, by committing additional resources, or by other means ...

Changes in the scope of work on a major project are a common occurrence in the construction industry. Contractors are accustomed to directed changes, that is, those changes ordered by the Owner or the Owner's agent under the change order clause of a contract. However, the nature or extent of construction work is often changed without the initiation of a change order. The question of compensation or time extension for this type of change is not as clearly addressed by the contract as are the responsibilities mandated by directed changes. This situation is commonly referred to as constructive change. A constructive change arises when the Owner acts in a manner that has the same effect as if a formal change order were written. If an unwritten change occurs, which would have been enforceable as a directed change under the contract ...

The construction contract is the most critical document in a construction project, because it defines the contractor's scope of work and compensation. It also establishes the responsibilities, liabilities, and warranties of both the contractor and the owner. As such, a contractor must carefully consider the contract language when bidding a job. The construction contract establishes the rules for the entire project, but does not always predict the way the project will be managed. Generally, the contractor's measures for preventing disputes during the bid stage include: Proper and timely performance of the contractor's contractual pre-bid duties, whether explicit or implied. These include site visits, material take-offs, and evaluation of key requirements for the work such as insurance and bonding. Careful reading of the proposed general terms and conditions of the contract and evaluation of risks imposed by these terms and conditions. ...

Liquidated damages (hereafter LDs) for delay can be an emotional topic for owners and contractors, as LDs come into play when the project is delayed and not progressing according to the parties' expectations. LDs signal a troubled project, often leading to rising tensions which unfortunately divert attention and energy away from completing the project as expeditiously and economically as possible. What are LDs for Delay? LDs are commonly defined as when a contractor agrees to pay an Owner a fixed sum, either expressed as a percentage of the contract price or a fixed amount per day of delay in completing agreed upon milestones or project completion dates. The term liquidated implies that the parties have expressly stipulated in the contract the damage amount to be recovered in the event of a delay, regardless of the actual damages incurred by the ...

Most would agree that the earlier a construction dispute, or potential dispute, is addressed, the better the chances of a fair and prompt solution. Undisputed facts may be available at the time of occurrence, facts that often become muddied with time and emotions. But acting promptly is not enough in itself. All potential disputes must be accurately and fully documented as they occur - not reconstructed with hindsight based solely on project cost overruns. By observing the following simple guidelines, it is possible to keep most construction difficulties from escalating into expensive, drawn-out claims. 1. Planning: An effective project manager should ideally spend more time anticipating potential trouble areas to be avoided, rather than rectifying problems that have already occurred. 2. Recognition: Recognizing a potential dispute situation as it unfolds is the key to avoiding claims or minimizing their impact. ...

Chapter One: Introduction There are certain assumptions that both the contractor and the owner possess when entering into a construction contract. These assumptions do not necessarily coincide with one another. The contractor should assume that the scope of work is sufficiently defined, the plans and specifications are complete and accurate, and the owner has fulfilled any requirements necessary to proceed with construction. The Owner, on the other hand, assumes the contractor is qualified to complete the work accurately and on schedule, and the price proposed is the total amount the owner will have to pay for the project. When these assumptions are not fulfilled, a claim usually ensues. Many different approaches exist to administer a construction contract from the position of the owner or the contractor. There are simple ways that will get the job done and there are complicated ...

If negotiations are stalled and litigation appears to be the only solution, follow these steps: Re-evaluationRe-evaluate your claim to determine if your demand is realistic. Research and prepare any new facts, explanations, or support. Advise opposition parties of new figures, facts, or other relevant information, and request further discussions based on the new information. New Claim ReviewAsk for a new claim evaluation by an unbiased claim administrator or review team. Be specific about why you want a change. Emphasize your intent to negotiate in good faith. MeetingRequest a senior management meeting between the two parties in dispute. Have senior management meet to exchange viewpoints and to ascertain if any measures could or should be taken in order to settle the dispute without litigation. Senior management should be thoroughly briefed about the issues under discussion, the amounts claimed or counterclaimed, and ...

If negotiations are stalled and litigation appears to be the only solution, follow these steps: Re-evaluationRe-evaluate your claim to determine if your demand is realistic. Research and prepare any new facts, explanations, or support. Advise opposition parties of new figures, facts, or other relevant information, and request further discussions based on the new information. New Claim ReviewAsk for a new claim evaluation by an unbiased claim administrator or review team. Be specific about why you want a change. Emphasize your intent to negotiate in good faith. MeetingRequest a senior management meeting between the two parties in dispute. Have senior management meet to exchange viewpoints and to ascertain if any measures could or should be taken in order to settle the dispute without litigation. Senior management should be thoroughly briefed about the issues under discussion, the amounts claimed or counterclaimed, and ...

Communicating Effectively Few things are as important as the ability to communicate effectively, particularly in construction claim negotiations and litigation. Disputes in the construction arena often involve technical information and damages, especially if indirect damages are incurred, such as productivity losses or delay costs. The party who incurred the damages needs to be able to communicate to the other side why the damages were incurred and the impact certain events had on project costs. Audiences retain visual representations of data with greater accuracy and for a longer period than they do the written or spoken equivalents of the same information. Visual aids, such as graphs, timelines, and tables, are effective with audiences unfamiliar with the project details, who may include upper management, mediators, arbitrators, or jurors. The visual aid needs to bridge the gap between the technical information and basic ...

"I'll see you in court!" Those volatile words are not uncommon when conflicts arise on a construction project. But nobody really wants to be in court. There is an alternative - mediation. Construction projects require contractual interdependence between many parties and frequently the complexity and nature of those relationships lead to conflict. Construction disputes are usually intricate and when they are not resolved, they commonly escalate to legal action involving arbitration or litigation. By the mid-1980s, it was becoming apparent to many that litigation costs were growing exponentially, and that many disputes that reached the legal arena could have been resolved earlier had the parties communicated their issues to each other clearly in a less combative setting. As with many trends, a few pioneers noted the phenomenon and developed an alternative approach to resolving a dispute-one that could be used ...