Resolving Construction Disputes: Review of State DOT Processes (2024)
Chapter: APPENDIX B: SURVEY TO INDUSTRY
APPENDIX B: SURVEY TO INDUSTRY
The National Cooperative Highway Research Program asked our firm, Capital Project Strategies, LLC, to look at the dispute resolution processes DOTs are using for construction disputes. A primary purpose of this survey is to confirm if and how DOTs are using arbitration and other forms of ADR. The findings will be published in a Legal Research Digest.
While we are surveying DOTs directly, we want to hear from industry members such as you who are familiar with one or more DOT processes. We know that you might have experience with Other Transportation Agencies, too; please feel free to include this experience in your answers.
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 or Other Transportation Agency 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.
- Other Transportation Agencies: rail, airport, and other state and local transit and transportation agencies other than DOTs.
- 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.
Notes:
- If you represent parties to a DOT construction dispute and serve as a dispute neutral, please complete the entire survey.
- If you are a dispute neutral who does not represent parties to a DOT construction dispute, please skip Parts 2 and 3.
- If you do not serve as a dispute neutral, please skip Part 4.
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: General Dispute Experience
* 1. In the past 10 years, in approximately how many construction disputes have you or your organization represented either a contractor or DOT/Other Transportation Agency in mediation, arbitration, litigation, or DRB hearings?
0-5
6-10
11-20
More than 20
* 2. Of the disputes represented in your answer to Question 1, what percentage settled before the rendering of an arbitration award or court decision on the dispute?
75-100%
50-75%
25-50%
0-25%
Not sure
* 3. In the last 10 years, for approximately how many construction disputes have you served as a dispute neutral between contractors and DOTs/Other Transportation Agencies?
0-5
6-10
11-20
More than 20
4. Of the disputes referenced in Question 3, approximately what percentage settled before the rendering of an arbitration award or court decision?
75-100%
50-75%
25-50%
0-25%
Not sure
* 5. Based on your experience, which of the following ADR processes do you consider to be the most effective for resolving construction disputes between DOTs/Other Transportation Agencies and contractors? (choose only one answer)
Facilitated partnering
Independent experts
Mediation
Standing DRBs
Ad hoc DRBs
Non-binding arbitration
Other (please specify)
* 6. Based on your experience, which of the following ADR processes do you consider to be the least effective for resolving construction disputes between DOTs/Other Transportation Agencies and contractors? (choose one)
Facilitated partnering
Independent experts
Mediation
Standing DRBs
Ad hoc DRBs
Non-binding arbitration
Other (please specify)
* 7. Based on your experience, which of the following do you consider to be the most effective for finally resolving construction disputes between DOTs/Other Transportation Agencies and contractors? (choose one)
Arbitration
Binding DRBs
LItigation
Part 2: Arbitration
(Please skip if you do not represent parties to a DOT construction dispute)
8. In the last 10 years, in approximately how many arbitrations have you or your organization represented and/or assisted either a contractor or DOT?
0-5
6-10
11-20
More than 20
9. For those arbitrations represented in your answer to Question 8, how often was the agreement to arbitrate between the DOT and contractor specified in the contract between the DOT and the contractor (i.e., a pre-agreement by the parties to arbitrate before the dispute arose)?
Most of the time
About half of the time
Rarely
Not sure
10. When a party that you have represented and/or assisted in an arbitration between a DOT and contractor is satisfied with the arbitration process, which of the following are typically the reasons the party is 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 handled the admission of evidence appropriately.
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)
11. When a party that you have represented and/or assisted in an arbitration between a DOT and contractor is dissatisfied with the arbitration process, which of the following are typically the reasons the party is dissatisfied? (choose all that apply)
The process was too informal.
The overall process took too long to get to a final result.
The arbitrators admitted material evidence that would not have been submitted 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)
12. How would you characterize the discovery process in your recent arbitrations between DOTs and contractors? (choose one)
The process was overly extensive and wasteful.
The process was appropriate.
The process was more limited than it should have been.
I don’t have sufficient information to have an opinion.
13. Do you think the discovery process impacted the ultimate arbitration results?
Yes
No
I don’t have sufficient information to have an opinion.
14. If you answered yes to the previous question, why did you do so?
15. How would you characterize the selection process for the arbitrator(s) in your recent arbitrations between DOTS and contractors?
Excellent
Very good
Good
Fair
Poor
I don’t have sufficient information to have an opinion.
16. If you rated the arbitrator selection process Good, Fair, or Poor, what about the process led to this answer? (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.
Not applicable
Other (please specify)
17. Do you think the arbitrator selection process impacted the arbitration results?
Yes
No
I don’t have sufficient information to have an opinion.
18. If you answered yes to the previous question, why did you do so?
19. How many of the arbitrations in which you have represented and/or assisted DOTs or contractors over the past 10 years resulted in an arbitration award (i.e., 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
20. Over the past 10 years, of the arbitration awards issued on matters where you have represented and/or assisted DOTs or contractors, 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.
21. If you found an arbitration award to be unfair, what were the reasons for your conclusion? (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.
Other (please specify)
22. In your experience, what contract provisions have arbitrators typically been asked to enforce in the arbitrations in which you have participated in representing a DOT or contractor? (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 condition, utility relocation, errors in the DOT’s contract documents) to the contractor
Other (please specify)
23. 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 you have represented and/or assisted a DOT or contractor? (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)
24. In your experience, how would you characterize the level of proof that parties have been held to to support their damages claims on those arbitrations where you have represented and/or assisted a DOT or contractor?
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.
25. Have you ever represented and/or assisted a party on a DOT construction project that used non-binding arbitration for all or any portion of a construction dispute?
Yes
No
26. If non-binding arbitration was used, what portion of the construction dispute was nonbinding?
Entitlement
Quantum
Both
27. In your experience in the last 10 years, how often have you found that the DOT and contractor voluntarily complied with non-binding arbitration rulings?
Frequently
About half the time
Infrequently
I don’t know
28. When the DOT and contractor do 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)
29. Do you feel the arbitrators on disputes arising from a DOT project are better capable of deciding liability or quantum of damages?
Liability
Quantum of damages
Both
30. Do any of your answers to the above materially change if the dispute involves an Other Transportation Agency and a contractor (rather than a DOT and a contractor)?
Yes
No
31. If your answer to the previous question was yes, please explain.
Part 3: Other ADR Experiences
(Please skip this section if you do not represent parties to a DOT construction dispute)
32. In your experience in the last 10 years, how effective has the use of a standing DRB been in resolving construction disputes on DOT projects?
Very effective
Effective about half the time
Typically ineffective
Not applicable
33. In your experience in the last 10 years, how effective has use of an ad hoc DRB been in resolving construction disputes on DOT projects?
Very effective
Effective about half the time
Typically ineffective
Not applicable
34. In your experience in the last 10 years, how often did the DOT and contractor voluntarily comply with non-binding DRB recommendation from either a standing or ad hoc DRB?
Frequently
About half the time
Infrequently
Not applicable
35. In your experience, when the DOT or contractor does not voluntarily comply with a nonbinding DRB recommendation, what is the most typical reason? (choose one)
One of the parties believes the recommendation was inconsistent with the contract.
One of the parties believes the recommendation 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.
One of the parties believes the other party is being unreasonable.
Not applicable
Other (please specify)
36. Have you ever represented and/or assisted either a DOT or contractor in a construction dispute that used a binding DRB?
Yes
No
37. In your experience in the last 10 years, how effective has use of a binding DRB been in resolving construction disputes on DOT projects?
Very effective
Effective about half the time
Typically ineffective
Not applicable
38. In your experience in the last 10 years, how effective has use of mediation been in resolving construction disputes on DOT projects?
Very effective
Effective about half the time
Typically ineffective
Not applicable
39. In your experience in the last 10 years, how effective has use of an independent expert in resolving construction disputes on DOT projects?
Very ineffective
Effective about half the time
Typically ineffective
Not applicable
40. If a construction dispute arose today between a contractor and DOT, what do you believe is the maximum amount in dispute which is appropriate to have that dispute decided by either arbitration or a binding DRB? (choose one)
Up to $500,000
Up to $1,000,000
Up to $5,000,000
Up to $10,000,000
Up to $20,000,000
There should be no limit.
Other (please specify)
41. Do any of your above answers materially change if the dispute involves an Other Transportation Agency and a contractor (rather than a DOT and a contractor)?
Yes
No
42. If you answered yes to the previous question, please explain.
Part 4: Dispute Neutral Experiences
(Please skip this section if you do NOT serve as a dispute neutral)
43. In the last 10 years, approximately how many times have you served as a member of a standing or ad hoc DRB on a DOT/Other Transportation Agency project?
0-5
6-10
11-20
More than 20
44. In the last 10 years, approximately how many times have you served as a member of a binding DRB on a DOT/Other Transportation Agency project?
0-5
6-10
11-20
More than 20
45. In the last 10 years, approximately how many times have you served as a mediator in a construction dispute between a contractor and a DOT?
0-5
6-10
11-20
More than 20
46. In the last 10 years, approximately how many times have you served as an independent expert in a construction dispute between a contractor and a DOT/Other Transportation Agency?
0-5
6-10
11-20
More than 20
47. In your experience in the last 10 years, how often did the DOT/Other Transportation Agency and contractor voluntarily comply with a non-binding DRB recommendations from either a standing or ad hoc DRB?
Frequently
About half the time
Infrequently
Not applicable or I don’t have sufficient information to have an opinion
48. In your experience as an arbitrator on DOT/Other Transportation Agency projects, what contract provisions have you been typically asked to enforce? (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 condition, utility relocation, errors in the DOT’s contract documents) to the contractor
Not applicable
Other (please specify)
49. In your experience as an arbitrator on any type of project, how often have you deviated from settled law and contract terms?
Often
Sometimes
Rarely
Never
50. If you ever deviated from settled law and contract terms as an arbitrator, what fact patterns or other issues caused you to do so? (choose all that apply)
When I believed that enforcement of settled law or the contract would be unfair.
When I did not like a party’s conduct.
When I had sympathy with the contractor’s position.
Not applicable.
Other (please specify)
51. In those cases where you have been an arbitrator, how would you characterize the level of proof that parties have been held to to support their damages 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
52. In those cases where you have been an arbitrator in a non-binding arbitration on a DOT/Other Transportation Agency project, what portion of the construction dispute was nonbinding?
Entitlement
Quantum
Both
Not applicable
53. How often have you found that the DOT/Other Transportation Agency and contractor voluntarily comply with non-binding arbitration rulings?
Frequently
About half the time Infrequently
Not applicable or I don’t have sufficient information to have an opinion
54. Do you regard yourself as more influenced by the law or the facts in making your arbitration decisions?
Facts
Law
Both equally
55. Which do you find more difficult to decide as an arbitrator, liability, or quantum of damages?
Liability
Quantum of damages
Both equally
Part 5: Other Comments or Thoughts
56. Do you have any other observations about DRBs that the Legal Digest should consider?
57. Do you have any other observations about independent experts that the Legal Digest should consider?
58. Do you have any other observations about mediation that the Legal Digest should consider?
59. Do you have any observations about arbitration not addressed above that the Legal Digest should consider?
60. Do you have any other observations about any other type of ADR that the Legal Digest should consider?
61. 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 | |
| City/Town |  |
| State/Province |  |
| Email Address | |
| Phone Number | |
* 62. Your role (choose all that apply):
Outside counsel representing contractors
In-house counsel for a contractor
Outside counsel representing DOTs or Other Transportation Agencies
Consultant to a DOT or Other Transportation Agency (e.g., General Engineering Consultant)
Forensic consultant (e.g., scheduling or claims expert)
Dispute neutral (such as a DRB member, arbitrator, mediator)
Other (please specify)
* 63. Your years of experience in dispute resolution
64. DOTs and Other Transportation Agencies with whom you are familiar relative to dispute resolution practices (please do not use acronyms):
* 65. Are you a Fellow in the American College of Construction Lawyers?
Yes
No
* 66. 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.
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