Resolving Construction Disputes: Review of State DOT Processes (2024)
Chapter: NCHRP LRD 92: Resolving Construction Disputes: Review of State DOT Processes
NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM
Resolving Construction Disputes: Review of State DOT Processes
This digest was prepared under NCHRP Project 20-06, “Legal Problems Arising Out of Highway Programs,” for which the Transportation Research Board (TRB) is the agency coordinating the research. Under Topic 26-02, Michael C. Loulakis, Capital Project Strategies, LLC, Reston, VA, prepared this digest. The opinions and conclusions expressed or implied in this digest are those of the researchers who performed the research and are not necessarily those of the Transportation Research Board; the National Academies of Sciences, Engineering, and Medicine; or the program sponsors. The responsible senior program officer is Gwen Chisholm Smith.
Background
State departments of transportation have a continuing need to keep abreast of operating practices and legal elements of specific problems in highway law. The NCHRP Legal Research Digest and the Selected Studies in Transportation Law (SSTL) series are intended to keep departments up-to-date on laws that will affect their operations.
Foreword
Alternative Dispute Resolution (ADR) processes, such as mediation, dispute review boards, and arbitration, are tools that save time and money in resolving disputes concerning the construction of transportation projects. However, given the nature of these processes, their results on transportation projects are generally not accessible or found in a central location. This legal research digest (digest) provides a thorough review of the various dispute resolution processes used by state departments of transportation (DOTs) and the outcomes of those processes.
This digest examines:
- State statutes and regulations that govern the resolution of disputes;
- Processes state DOTs are using for the resolution of construction disputes;
- Rules used for the different ADR processes (e.g., timing, makeup, administration of panels, enforcement of contract clauses) and how the rules affect the outcome of disputes.
Also, this digest provides an in-depth analysis of the use of arbitration among those DOTs that have used this binding dispute process. The analysis includes (1) contract provisions that arbitrators are regularly asked to enforce; (2) sample fact patterns; (3) levels of proof required to prove damages; and (4) differences in the levels of discovery conducted in arbitration versus proceedings in court.
This digest would be helpful to all persons involved in transportation construction dispute resolutions, specifically administrators, attorneys, program officers, contracting officers, and risk managers.
