claims management and disputes - smith currie · managing construction disputes three phases:...
TRANSCRIPT
Claims Management and Disputes
Jim Bidgood & Brian Krulick
PRESENTED BY:
2
Managing Construction Disputes
Three Phases:
Pre-Construction
Construction
Post-Construction / Litigation
3
Pre-Construction
Establish ESI Protocols
Organization
Retention
Shared File Management Systems
4
Pre-Construction
Project Assessment
Commercial Team should consult with Construction/Project Implementation Team during contract negotiation
Due Diligence: Owner, General Contractor, Subcontractors
5
Pre-Construction
Know when you have a Contract
“We never signed the contract”
Letters of Intent
Agreements to Agree
6
Pre-Construction Carefully Read and Understand the Contract
Reporting Requirements
Notice Provisions
Flow-Down Provisions
Indemnity
Attachments, Exhibits, Incorporation by Reference
Priority
7
Pre-Construction
Do Not Negotiate Murky or Potentially Problematic Provisions
Be Clear
Do Not Assume Your Interpretation Will Prevail
“For the avoidance of doubt…”
8
Pre-Construction
Be Diligent and Thorough Performing Pre-Construction Work
Site/Field Inspections
Estimates
Schedules
Subcontractors
Materials/Equipment Procurement
9
Pre-Construction
Project Schedules
Realistic and Executable
Include Procurement
Plan for Delays and Disruptions
10
Pre-Construction
Identify Risks in Advance and Consult Specialists
Complex/Unusual Site Conditions
Local Laws/Building Codes
Government Relations
11
Construction
Document Issues
Daily Reports
Letters
Site Meetings/Meeting Minutes
Executive Level Meetings
12
Construction
Accurate Project Records
Review and Update Regularly
Photographs and Videos
Require All Personnel To Follow Protocols
13
Construction
Deal With Issues As They Arise – Do Not Postpone Them
Open Communication
Trust But Verify
If you do postpone, make a record; do not waive claims
Tolling Agreements - Statute of Limitations
14
Construction
Give Notice Properly
Timely
Method of Delivery
Contractually Designated Recipient
Strict Notice vs. Substantial Compliance
15
Construction
Follow the Contract
Insist on it from your Counterparty
Field Directives – Authorized Representative Only
Failure to Follow Contract Waiver
16
Construction Be Aware of Danger Zones
Delays
Scope/Extra Work
Inefficiency/Cumulative Impact Claims
Soils/Differing Site Conditions
Design
Quality of Work
Engage experts/specialists
17
Construction
Keep Communications Professional
Stick to the facts, do not get personal
Electronic communications (email, texts, chats, etc.) are FOREVER
Do not use foul language
Do not air dirty laundry
Protect Privileged Communications
18
Construction
Duty to Mitigate
Even if not in expressly stated in the Contract
Failure to mitigate can be a breach
Your own and your counterpart’s breach
19
Post-Construction/Litigation
Claims/Litigation Team
Knowledgeable Project Personnel
Construction
Project Controls (Scheduling and Costs)
20
Post-Construction/Litigation
Understand the Forum
Court vs. Arbitration
State Court vs. Federal Court
Jury Trial
Choice of Law
International Arbitration
21
Post-Construction/Litigation
Always Look for Settlement Opportunities
Nothing is Guaranteed
Principles are Expensive
Settlement = Certainty
