Resolving Construction Disputes: Review of State DOT Processes (2024)
Chapter: APPENDIX A: SURVEY TO DEPARTMENTS OF TRANSPORTATION
APPENDIX A: SURVEY TO DEPARTMENTS OF TRANSPORTATION
The National Cooperative Highway Research Program has asked our firm, Capital Project Strategies, LLC, to research and analyze the alternative dispute resolution (ADR) processes being used by state DOTs for construction disputes. A primary purpose of this survey is to confirm if and how DOTs are using arbitration and other forms of ADR.
Instructions:
Please answer as many questions as you can. Leave blank any that you cannot answer. Please note that questions prefaced with an * require an answer. If a question mentions a specific time period and you can only answer for a longer or shorter period, please give an answer for the period familiar to you.
Please use the following definitions when answering the questions:
- Contractor: those contractors having a contract with a DOT for a construction project, including: (a) general construction contractors; (b) design-builders; (c) construction manager/general contractors (CMGCs); and (d) developers/concessionaires under a public-private partnership delivery model.
- Arbitration: binding arbitration; similar to litigation in terms of its finality relative to the dispute. Questions requesting information on non-binding ADR (including non-binding arbitration) will specifically note that the process is non-binding.
- Construction dispute: a dispute of any type on a construction project, such as those related to change orders, delays, terminations, and other commercial matters. It is does not include personal injury disputes.
- DRB: a dispute resolution or dispute review board/panel.
- Standing DRB: a DRB that has been established at the outset of the project/contract, meets regularly throughout the project, and provides non-binding recommendations to the parties when called upon.
- Ad hoc DRB: a DRB that is convened only to hear a specific dispute and provide a non-binding recommendation to the parties.
- Binding DRB: a DRB that is convened to hear a specific dispute and provide the parties with a binding decision, similar to an award issued by an arbitration panel.
It should take approximately 15 minutes to complete the survey.
Thank you in advance for your help. The survey data will be anonymous and there will be no identification of your participation. If you have any questions, please contact Michael Loulakis, the Principal Investigator, at mloulakis@cp-strategies.com.
Part 1: ADR Experience Generally
* 1. In the past 10 years, which ADR procedures has your DOT had experiences with in the context of construction disputes with contractors? (choose all that apply)
Facilitated partnering
Independent experts
Mediation
Standing DRBs
Ad hoc DRBs
Binding DRBs
Arbitration
Non-binding arbitration
Other (please specify)
* 2. Based on your experience, which of the following ADR processes do you consider to be the least effective for resolving construction disputes between your DOT and contractors? (choose only 1 answer)
Facilitated partnering
Independent experts
Mediation
Standing DRBs
Ad hoc DRBs
Non-binding arbitration
Other (please specify)
* 3. Based on your experience, which of the following do you consider to be the most effective process for the final resolution of construction disputes between DOTs and contractors? (choose only 1 answer)
Arbitration
Binding DRBs
Litigation
Part 2: Arbitration Authority & Agreement to Arbitrate
* 4. Is your DOT authorized to use arbitration to resolve construction disputes?
Yes
No
* 5. Is your DOT required by law or policy to use arbitration for all unresolved construction disputes?
Yes
No
* 6. Is your DOT’s ability to use arbitration for unresolved construction disputes limited or conditioned on anything?
Yes
No
7. If your DOT’s ability to use arbitration for unresolved construction disputes is limited by or conditioned on something, which of the following apply? (choose all that apply)
The DOT must agree to arbitrate specific disputes.
Both the DOT and contracting party must agree to arbitrate specific disputes.
The dispute must be at or below certain monetary amounts.
The arbitration is only binding as to entitlement, but not quantum.
Other (please specify)
8. If your DOT must agree to arbitrate specific disputes, how often over the past 10 years has it agreed to do so?
Always agrees
Typically agrees (approximately 75% of the time)
Agrees about half of the time
Occasionally agrees (approximately 25% of the time)
Rarely, if ever, agrees
Not applicable
9. If your DOT must agree to arbitrate specific disputes, and your DOT has agreed to arbitrate, how has this agreement been established? (choose all that apply)
In advance of a dispute, through a disputes clause in the contract that requires arbitration of disputes.
After a dispute arises, when the DOT has agreed to arbitrate.
Not applicable
10. If the answer to the previous question was that the disputes clause in the contract requires arbitration, what types of contracts have included this type of disputes clause? (choose all that apply)
Construction contracts
Construction contracts over a certain dollar threshold or of a particular type
Design-build contracts
Other (please specify)
P3 contracts
Not applicable
11. If your DOT must agree to arbitrate specific disputes, who within the DOT makes the ultimate decision on whether or not to arbitrate?
Secretary of Transportation
Commissioner of Transportation
The chief legal officer for the DOT
The DOT lawyer responsible for the dispute
The DOT project director
It is a joint decision by some or all of the above
Not applicable
Other (please specify)
12. When your DOT agrees to use arbitration to resolve disputes on a particular project, which of the following typically describes its reasons for doing so? (choose all that apply)
The contractor or marketplace requires arbitration because of project type (e.g., design-build or P3), project size/risk, or other project considerations.
Our DOT believes that arbitration will be faster than litigation.
Our DOT believes that discovery in arbitration will be more limited than litigation.
Our DOT has a preference for having arbitrators decide the dispute rather than a judge or jury.
Our DOT believes that arbitration will be less expensive than litigation.
Our DOT believes that arbitration will better preserve the relationship with the contractor than litigation.
Our DOT believes that if the parties are required to arbitrate there is a higher likelihood that the case will settle.
Not applicable
Other (please specify)
13. If your DOT is authorized to use arbitration and does not agree to use it to resolve disputes on a particular construction project, which of the following typically describes its reasons for doing so? (choose all that apply)
Our DOT has a preference for litigation-type discovery and pretrial motions.
Our DOT has a preference for having a judge or jury decide the dispute rather than arbitrators.
Our DOT has a concern that arbitrators will not abide by the contract.
Our DOT believes that arbitrators favor contractors.
Our DOT believes that if the parties are required to litigate there is a higher likelihood that the case will settle.
Not applicable
Other (please specify)
Part 3: Arbitration Experiences
* 14. How many arbitration demands were initiated by or against your DOT by contractors over the past 10 years?
0-2
3-5
6-10
More than 10
15. Based on your DOT’s recent arbitration experiences, what was its level of satisfaction with the arbitration process, including the ultimate results?
Highly satisfied
Generally Satisfied
Satisfied
Unsatisfied
Extremely unsatisfied
Not applicable
16. If your DOT was satisfied with the arbitration process, why was it satisfied? (choose all that apply)
The overall process was efficient.
The process took a reasonable amount of time to get to a final result.
The arbitrators appropriately handled the admission of evidence.
The award was consistent with the contract.
The award was consistent with the factual evidence.
The arbitrators understood the case.
Not applicable
Other (please specify)
17. If your DOT was unsatisfied with the arbitration process, why was it unsatisfied? (choose all that apply)
The process was too formal.
The overall process took too long to get to a final result.
The arbitrators admitted material evidence that would not have been admitted in court.
The award was inconsistent with the contract.
The award was inconsistent with the factual evidence.
The arbitrators did not understand the case.
Not applicable
Other (please specify)
18. How would you characterize the discovery process in your DOT’s recent arbitrations? (choose best answer)
The process was overly extensive and wasteful.
The process was appropriate.
The process was more limited than it should have been.
Not applicable
19. Do you think the discovery process impacted the ultimate arbitration results?
Yes
No
Not applicable
20. If you think the discovery process impacted the ultimate arbitration results, why do you think so?
21. How would you characterize the selection process for the arbitrator(s) in your DOT’s recent arbitrations?
Excellent
Very good
Good
Fair
Poor
Not applicable
22. If you rated the arbitrator process Good, Fair, or Poor, what about the process caused you to do so? (choose all that apply)
The arbitrator pool was deficient in terms of experience.
The DOT did not have sufficient input into the selection.
The selection process took too long.
Other (please specify)
23. Do you think the arbitrator selection process impacted the arbitration results?
Yes
No
Not applicable
24. If you think the arbitrator selection process impacted the arbitration results, why do you think so?
25. How many of the arbitrations initiated over the past ten (10) years resulted in an arbitration award (as opposed to being resolved before the award)?
Virtually all of them
Most of them (75%+)
About half of them
Few of them (25%)
Virtually none of them
Not applicable
26. Of the arbitration awards issued over the past ten (10) years, how often do you believe the awards were fair?
The awards were typically fair.
About half of the awards were fair.
The awards were typically unfair.
Not applicable
27. When you believe an arbitration award to be unfair, what are the typical reasons for your belief? (choose all that apply)
The award was inconsistent with the contract.
The award was inconsistent with the factual evidence.
The award demonstrated that the arbitrators did not understand the case.
The award demonstrated that the arbitrators were biased in favor of the contractor.
Not applicable
Other (please specify)
28. In your experience, what contract provisions have arbitrators typically been asked to enforce in the arbitrations in which your DOT has participated? (choose all that apply)
Notice provisions
No damages for delay provisions
Indemnity provisions
Waivers of claim provisions
Clauses that shift commercial risks (e.g., site conditions, utility relocation, errors in the DOT’s contract documents) to the contractor
Not applicable
Other (please specify)
29. In your experience, what (if any) fact patterns or other issues cause arbitrators to deviate from settled law and contract terms in arbitrations in which your DOT has been involved? (choose all that apply)
When it appears that the arbitrators believe that enforcement of settled law or the contract would be unfair
When it appears that the arbitrators do not like a party’s conduct
When it appears that the arbitrators have sympathy with the contractor’s position
I have not experienced this.
Other (please specify)
30. Based on the arbitrations in which your DOT has been involved, how would you characterize the level of proof that parties have been held to to support their damage claims?
Higher levels of proof than would be applicable in court
The same levels of proof that would be applicable in court
Slightly lower levels of proof than would be applicable in court
Substantially lower levels of proof than would be applicable in court
Not applicable
* 31. Are your DOT’s arbitration awards published and available to the public?
Yes
No
Not applicable
32. If your DOT’s arbitration awards are published and available to the public, in what form are they available? (choose all that apply)
They are available online.
They are available in the DOT/state library.
They are only available by request.
Other (please specify)
33. Approximately how many arbitration awards are published and available to the general public?
0-5
6-10
11-20
21-40
More than 40
* 34. Has your DOT ever used non-binding arbitration for all or any portion of a construction dispute?
Yes
No
35. If your DOT has used non-binding arbitration, what portion of the construction dispute was non-binding?
Entitlement
Quantum
Both entitlement and quantum
36. In your experience in the last ten (10) years, how often does your DOT and the contractor voluntarily comply with non-binding arbitration rulings?
Frequently
About half the time
Infrequently
37. When either your DOT or the contractor does not voluntarily comply with a non-binding DRB recommendation, what is the most typical reason? (choose one)
One of the parties believes the ruling was inconsistent with the contract.
One of the parties believes the ruling was inconsistent with the factual evidence.
One of the parties believes that the DRB did not understand the case.
One of the parties believes the DRB was biased against it.
Other (please specify)
* 38. Do you feel that arbitrators are better capable of deciding liability or quantum of damages?
Liability
Quantum of Damages
Both liability and quantum of damages
Part 4: Other ADR Experiences
* 39. Is your DOT authorized to use DRBs?
Yes
No
40. How often will your DOT use a DRB of any type on its construction projects?
41. When your DOT uses DRBs, how frequently will the DOT use a standing DRB?
42. In your experience in the last ten (10) years, how effective has the use of a standing DRB been in resolving construction disputes?
Very effective
Effective about half the time
Typically ineffective
Not applicable; our DOT has not used standing DRBs
43. When your DOT uses DRBs, how frequently will the DOT use an ad hoc DRB?
44. In your experience in the last ten (10) years, how effective has use of an ad hoc DRB been in resolving construction disputes?
Very effective
Effective about half the time
Typically ineffective
Not applicable; our DOT has not used ad hoc DRBs
45. In your experience in the last ten (10) years, how often does your DOT and the contractor voluntarily comply with non-binding DRB recommendations from either a standing or ad hoc DRB?
Frequently
About half the time
Infrequently
Not applicable; our DOT has not had any recommendations from either a standing or ad hoc DRB.
46. In your experience, when your DOT or the contractor does not voluntarily comply with a non-binding DRB recommendation, what is the typical reason? (choose one)
Other (please specify)
47. When your DOT uses DRBs, how frequently will the DOT use a binding DRB?
48. In your experience in the last ten (10) years, how effective has use of a binding DRB been in resolving construction disputes?
Very effective
Effective about half the time
Typically ineffective
Not applicable; our DOT has not used binding DRBs
49. In your experience in the last ten (10) years, how effective has use of an independent expert been in resolving construction disputes?
Very effective
Effective about half the time
Typically ineffective
Not applicable; our DOT has not used independent experts
50. In your experience in the last ten (10) years, how effective has use of mediation been in resolving construction disputes?
Very effective
Effective about half the time
Typically ineffective
Not applicable; our DOT has not used mediation
* 51. If a construction dispute arose today between a contractor and your DOT, what do you believe is the maximum amount in dispute which is appropriate to have the dispute decided by either arbitration or a binding DRB? (choose one answer)
Up to $500,000
Up to $1,000,000
Up to $5,000,000
Up to $20,000,000
There should be no limit.
Other (please specify)
Part 5: Other Comments or Thoughts
52. Do you have any observations about DRBs not addressed above that the Legal Digest should consider?
53. Do you have any observations about independent experts not addressed above that the Legal Digest should consider?
54. Do you have any observations about mediation not addressed above that the Legal Digest should consider?
55. Do you have any observations about arbitration not addressed above that the Legal Digest should consider?
56. Do you have any other observations about any other type of ADR not addressed above that the Legal Digest should consider?
57. Please provide us with this information about you and your organization. (Your name will not be associated with the survey data; all survey answers will be anonymous.)
| Your Name & Title |  |
| Organization | |
| Email Address | |
| Phone Number | |
58. Your role in the Organization
* 59. Your years of experience with dispute resolution
* 60. May we contact you to ask some brief follow up questions related to this survey?
Yes
No
This is the end of the survey.
We sincerely appreciate your help
with this important industry research.
