I. Introduction: Achieving Rapid Cost-Effective Resolution of Construction Dispute
A. The “Top Ten” Dispute Resolution Methods and the Option of Litigation
B. The Practical Considerations in Selecting a Dispute Resolution Forum.
C. The Analytical Considerations for Claim Development and Resolution
1. Marshaling the Key Facts
2. Tying Factual Causation to Quantum of Loss
3. Reviewing Damage Measures and Limitations
4. Analyzing Legal Entitlement Under and Outside of the Contract
5. Picking the Right Dispute Resolution Methods and Forums
II. Defining the Parties’ Performance Obligations Within and Outside the Contract’s “General Scope”
A. Express Contract “Scope” and the Doctrine of Sanctity of Contract
B. Implied Conditions to the Contractual Undertaking
C. Ambiguous Contract Provisions Requiring Interpretation
D. “Changes” and Extra Work within and outside the Contract’s “General Scope”
E. Waived Contract Requirements
F. Statutory Building Codes and Their Contractual Implications
G. Contracts implied in Fact and Implied in Law
G. Extra-Contractual Duties Imposed by Law
III. Finding Breaches of Obligations within and outside of the Contract’s “General Scope”
A. The Concepts of Contract “Breach” and “Material Breach”
B. Remedy of Contract Termination for “Material Breach”
C. Recourse for Breach of Contracts Implied in Fact and Implied in Law
D. Recourse for a Contractual Breach that Rises to the Level of an Independent Tort
IV. Quantifying Construction Damages
A. Common Law Damage Measures for Breach of Contract amid the Limitations Imposed by the Doctrines of Consequential Damages, Economic Waste, Betterment, Economic Loss, Mitigation, Apportionment and Disproportionality
B. Implications of Agreed Damage Measures: Clauses limiting or eliminating damages recoverable under Common Law and Equitable Damage Measures
C. The Owner’s Damage Measures for Non-Conforming Workmanship and Delay
D. The Contractor’s Damage Measures for Owner Breach: Segregated and Unsegregated Damages.
V. Managing or Transferring Assumed Performance Risks by Contractual Indemnification and Insurance.
A. The Catalogue of Construction Project Risks of Performance and Payment
B. Risks Created By Different Project Delivery Systems on Public and Private Projects
1. Distinguishing Public and Private Projects
2. Design-Bid-Build
3. Design-Build
4. Construction Management (At-Risk and Agency)
5. Integrated Project Delivery (IPD)
6. Building Information Modeling (BIM)
C. Risks Created By Performance Specifications, Building Code Standards, and LEEDS and Other Owner Performance Requirements.
D. Risk Transfer by contractual and Implied Indemnification
E. Risk Transfer by General Liability, Builder’s Risk, “Wrap-Up” and Other Forms of Insurance
VI. Understanding Construction Suretyship
A. The Surety’s “Tripartite” Relationship, Indemnification from its Principal and indemnitors, and Distinction of Suretyship from Insurance
B. Types, Durations, Liability Limitations and Interpretation of Construction Bonds
C. “Triggering” the Obligation of the Performance Bond Surety
D. The Performance Bond Surety’s “Contract” and “Bond” Defenses
VII. Proving Activity-Related Defective Work Claims
A. What’s Defective: Specification Requirements and Industry Standards
B. Implications of Inspection and Acceptance
C. Waiver of Specifications
D. Measure of Recovery: Cost of Repair V. Diminution
VIII. Proving Activity-Related Differing Site Conditions Claims
A. Contract and Specification Requirements, the DSC and Site Inspection Clauses
B. Disclaimers of Soli Conditions
C. What’s the “Material Difference” from Contract Information and Site Conditions
D. Measure of Recovery: Cost of the “Difference”
IX. Proving Time-Related Claims for Delay, Acceleration and Disruption
A. Contract and Specification Scheduling Duties
B. Materiality and Parameters of Contract Time
C. “Control” Factors Causing Delays to be Classed as “Inexcusable”, “Excusable” and “Compensable” “Concurrent” and “Apportioned”
D. “Normal” and “Abnormal” Duration of Delay, Acceleration and Disruption
E. Methods of Proving Time-Related Damages
X. Deciding to Arbitrate: The Practical and Legal Considerations
A. Decision to Arbitrate
B. Selection of the Arbitrator and Administrator
C. The Arbitrator’ Perspective from the “the Other Side of the Bench”
D. The Governing Law and Rules of Arbitration
1. “Scope” of the Arbitration Agreement and Conferred Powers of the Arbitrators
2. Joinder of Non-Signatory Parties
3. Limited Grounds for Judicial Vacature
E. Arbitration Appellate Practice (JAMS Optional Appellate Arbitration Rules)
F. Confirmation of Award and Preclusive Effect
