How to Avoid and Resolve Disputes over Delays and Disruptions - 7

2. By withholding its agreement to any other options that are
binding on the parties or by express agreement, the contractor
can make litigation the only binding procedure for resolving
some or all disagreements between the parties.
* Before the contractor takes this approach, it should carefully
review and consider any contractual provisions relating
to the state law that will govern any disputes between
the parties and the forum in which the contractor may be
required to litigate.
* With claims for delay and/or disruption specifically in mind,
the contractor should also consider the merits of seeking
at least an agreement on the after-the-fact methodologies
and/or an order of preference for different methodologies
that the parties will use to resolve any delay or disruption
claims that remain at the time of substantial completion.

V. CONTRACT TERMS AND CONDITIONS
AGC members have yet to identify any substitutes for realtime, honest and transparent collaboration between and among
the parties, and they have yet to identify anything that can
guarantee such collaboration. But contract terms and conditions
can and typically do influence behavior and, certainly, they can
make a situation either better or worse. The issues on which the
parties have reached contractual agreement are not subject to
debate if a dispute later arises.
As noted, the best practice is to incorporate well-crafted
standards and procedures for resolving disputes over delays
and/or disruptions into the contract between the parties. Other
provisions are also important to include, for they can also encourage the prompt and fair resolution of any claims for delay and/or
disruption. Following are comments on provisions that require
notice of an issue, require the discrete tracking of additional
costs or quantities (and/or explain how the parties will estimate
same), allocate the cost of uncertainty surrounding a claim and
reserve certain rights.
A.PROVIDING NOTICE OF AN ISSUE
Contractors can seek provisions that clarify their obligation
to give appropriate notice of a potential claim for delay and/
or disruption. Such provisions should be fair to the client but
not impose an undue burden on the contractor or create a trap
for the unwary.
1. Such provisions should give the contractor a reasonable
amount of time to provide the client with written notice of the
potential cause or causes of delay or disruption. A reasonable
amount of time would typically be seven (7) calendar days,
beginning with the day on which the contractor became
aware of the relevant event(s), whether past or anticipated.
If the contract is silent on the subject, that same period of
time should normally be considered reasonable.
2. Such provisions should identify the information to be
included in the notice. If the cause of the problem is reasonably clear, the contractor can and should be expected to

provide that information. If multiple events are contributing
to a delay or disruption, a single notice that includes and
identifies all of the reasonably clear causes of the problem
should be sufficient.
3. Such provisions can reasonably require the contractor to
provide follow-up notices of a continuing cause or causes
of delay or disruption, for the duration thereof. A reasonable
interval for such follow-up notices would typically be thirty
(30) calendar days. If the contract is silent on the subject,
that same period of time should be considered reasonable.
4. Such provisions should also identify the information that
any follow-up notice(s) should include. The contractor can
and should be expected to include, to the extent feasible,
a rough estimate, or an order of magnitude, of the additional time that the relevant event(s) are likely to add to
the schedule and/or the costs that the event(s) are likely to
require the contractor to incur. Whether or not the contractor is required to do so, the contractor may find it advisable
to include its daily rate for time related overhead ("TRO"),
so that the client is aware of how quickly the contractor's
overhead cost is increasing. To the extent that the contractor can quantify a decline in productivity, the contractor
should also be expected to include its assessment, along
with the methodology that the contractor used.
5. Reasonably, such provisions can also require the contractor
to provide the client with written notice of the point at which
the cause of a delay or disruption has ceased, and they can
require the contractor to do so within a reasonable amount
of time. A reasonable amount of time would typically be
seven (7) calendar days, beginning with the day on which
the contractor became aware of the relevant event(s) ceased.
If the contract is silent on the subject, that same period of
time should normally be considered reasonable.
6. Such provisions should also give the contractor a reasonable amount of time, following notice that a problem has
ceased, to request an extension of time and/or an equitable adjustment of the contract price. What is reasonable
will depend on the circumstances, but typically, thirty
(30) calendar days should be considered reasonable. If a
longer period of time would be more reasonable, under
the particular circumstances, such provisions should only
require the contractor to give the client notice of the date
by which the contractor will request an extension and/or
adjustment. If the contractor has multiple claims relating
to multiple events, it may be appropriate to permit the
contractor to combine all of them in a single claim.
7. Finally, such provisions should make it clear that the contractor's failure to strictly comply with the requirements
for notice will not, in and of itself, amount to a waiver of
the contractor's right to an equitable adjustment, unless
the owner can demonstrate that the contractor's failure to



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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