How to Avoid and Resolve Disputes over Delays and Disruptions - 3

3. Carefully review the proposed contract. Take the time to
determine and fully understand how it allocates risk among
the parties.
* Sometimes, contracts address generic risks, such as the
risk of differing site conditions. On other occasions, they
address risks specific to the particular project, such as the
risk that subsurface conditions will hinder the pile driving
that the project requires.
B. FOLLOWING CONTRACT AWARD
1. Prepare a "cheat sheet" that summarizes the key provisions
of the final contract, including the remedies that it provides
for any delay or disruption that the client may cause (whether
time, money or both) and any related provisions, particularly
including any related requirements to provide notice of a
problem to the client.
* The "cheat sheet" needs to provide an appropriate level of
detail. Relative to each requirement for notice, the document should, for example, include the events that would
trigger the requirement, the information that the notice
needs to include, the information that should be readily
available to the project team at the time it gives notice
and any information that the team may need to provide
at a later time.
* To the "cheat sheet," contractors frequently attach a list
of the risks that the contract requires the parties to share
and how it requires them to do so.
2. Provide the "cheat sheet" to the project team and then walk
the team through the document, taking the time to ensure
that everyone is well aware of all contract terms and conditions directly relating to change orders and other potential
causes of delay and/or disruption.
3. Provide the project team with a written summary of any risk
mitigation strategies that the contractor has developed for
the particular project.
* Contractors have found it important to ensure that their
project teams comprehend any project-specific strategies
and are equipped to implement them.

III. HOW CONTRACTORS CAN WORK
WITH THEIR CLIENTS
In conjunction with their clients and other parties to the construction process, contractors can also take at least two more steps.
One is to hold a kick-off meeting with the client's representatives
and the other is to hold a "schedule risk" workshop with the
appropriate members of the client's team, the design team (in a
traditional design-bid-build situation) and key subcontractors. To
the kick-off meeting, the contractor would send its entire project
team and the relevant members of its management team, and the
contractor would invite the client's entire project team and the
relevant members of its management team. To the workshop, the
contractor would send the appropriate members of its project and
management teams and invite the appropriate representatives of
not only the client, but also the design firm and key subcontractors.

Quite clearly the contractor cannot unilaterally require such a
meeting and/or workshop. The contractor can, however, request
and encourage participation in such events even if the contract
with or between the other parties does not compel participation.
A well-organized kick-off meeting will provide an opportunity
for the contractor and its client to clarify and align their expectations and help them to avoid the kinds of surprises that can easily
grow into disputes. Such a workshop will help all of the parties
to understand and appreciate the risks of a delay and how to
manage if not avoid them.
A.KICK-OFF MEETING
Past experience would suggest that a kick-off meeting begin
with an exchange of organizational charts that clarify and
confirm the authority vested in each level of each organization.
Following that exchange, the contractor should identify each
member of its project and management teams and explain the
role that each one plays, and the client should do the same. The
follow-up discussion should address and cover the hierarchy
within each organization, and it should continue until every
member of each team can readily identify his or her counterpart
in the other organization, his or her respective level of authority,
and the appropriate lines of communication.

Entirely on their own, construction
contractors can begin to mitigate the
risk of a time-consuming and costly
dispute over a claim for delay or
disruption.
The contractor should then share its "cheat sheet" with the
client's project and management teams, and walk them through
it. Along the way, the contractor should express its understanding of the contract and invite the client's teams to share any
differences in the way that they understand the contract. If
differences do surface, the contractor should also try to resolve
them as soon as possible. Indeed, one of the primary goals of
the meeting is to get everyone onto the same page.
Once the parties conclude their review and discussion of the
"cheat sheet," the contractor should walk the client's teams
through the schedule for the project and the key quantities
(whether labor or materials) that the contractor has estimated
the project to require.
The next items on the agenda should be a hypothetical change
order and a follow-up discussion of the change order process,
including the information and timing required by the contract.
The contractor should lay out a plausible scenario and identify
the direct and indirect (whether field or home office) costs that
the change order would likely require the contractor to incur. In
the process, the contractor should carefully explain the difference between the direct or bare costs of a change order and the
fully loaded costs. Unless the contractor has already negotiated



Table of Contents for the Digital Edition of How to Avoid and Resolve Disputes over Delays and Disruptions

How to Avoid and Resolve Disputes over Delays and Disruptions - Intro
How to Avoid and Resolve Disputes over Delays and Disruptions - 1
How to Avoid and Resolve Disputes over Delays and Disruptions - 2
How to Avoid and Resolve Disputes over Delays and Disruptions - 3
How to Avoid and Resolve Disputes over Delays and Disruptions - 4
How to Avoid and Resolve Disputes over Delays and Disruptions - 5
How to Avoid and Resolve Disputes over Delays and Disruptions - 6
How to Avoid and Resolve Disputes over Delays and Disruptions - 7
How to Avoid and Resolve Disputes over Delays and Disruptions - 8
How to Avoid and Resolve Disputes over Delays and Disruptions - 9
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