claim subject to arbitration, many of which are quite small dollar amounts. The summary of these limits is set forth in Table 2 (“DOT Arbitration Processes”) in Chapter IV. Some of the DOTs have the authority to use arbitration on a given dispute that exceeds the limits if they agree with the contractor to do so; others cannot. For the remaining DOTs that do not have express limits (i.e., Ohio and Oklahoma), their arbitration processes require the parties to mutually agree to arbitrate. Obviously, this means, among other things, that the DOT can consider the value of the claim as part of its process in deciding whether to arbitrate.

Feedback from the surveys and subsequent interviews with both DOTs and industry provided some important perspectives on the effectiveness or challenges with arbitration. While this is discussed extensively in Chapter VII, the takeaways are that most respondents felt that the arbitration process worked well and were satisfied with the awards and processes. The primary points of concern were when the arbitrators did not follow the contract or the law, and sometimes that was attributed to the quality of the arbitrator or arbitration panel. Interestingly, of the many industry respondents who serve as neutrals and represent contractors and DOTs in disputes, most stated that they have never experienced a situation where the contract or law was not followed.

The final key takeaway relates to the perspectives that come from case law and arbitration awards (discussed in Chapter VIII) as amplified by the survey feedback. It is clear that the types of disputes being heard in arbitration are “garden variety” construction disputes that occur on non-DOT projects as well. Claims are typically based on disputes over differing site conditions and defective specifications, disputes which then lead to delays and disruption that can be far more costly than the direct costs of the differing site condition or defective specification. Once an award has been issued by an arbitrator, it is quite difficult to overturn it. However, as evident by the case law, some dissatisfied parties do try to have awards vacated.

II. OVERVIEW OF NONBINDING DISPUTE RESOLUTION PROCESSES

While the construction industry often thinks of dispute resolution in terms of the formal, binding processes of arbitration and litigation, there are myriad nonbinding processes that are regularly used on public and private sector projects, including projects delivered by state DOTs. Some of these nonbinding processes are administrative in nature, where personnel of the parties attempt to resolve the dispute. Others are more formal and typically involve the use of a third party to help facilitate the resolution of the dispute.

Regardless of the approach used, all nonbinding dispute resolution processes share a common attribute. They are intended to give the parties a platform by which they can confer about the dispute and attempt to resolve it before the decision is taken out of their hands and put into those of an arbitrator, judge, or jury.

This section will review the most common nonbinding processes used by state DOTs and other public agencies. It will first examine processes that are often considered administrative in nature and do not involve the use of a third party neutral. It will then turn to processes that use one or more third party neutrals to help the parties resolve their issues.

A. Administrative Processes

It is common for DOTs to have project-level, nonbinding processes that address the submission of contractor claims and ways to consider and resolve such claims. The common attribute of these administrative processes is that they do not involve the use of third parties, but instead have the parties’ personnel deal directly with each other. Some DOTs use informal partnering-type processes to resolve disputes, while others have formal, prescribed claim submission processes. While it is beyond the scope of this digest to discuss in detail the processes for each DOT, the following will provide some examples of these administrative processes to give readers a sense of how they operate.

1. Issue Resolution Ladders

Many DOTs have internal administrative processes that focus on “real-time” dispute resolution using a “ladder” approach. As the “ladder” name suggests, the process is intended to start with appropriate personnel at the project field level. If the issue cannot be resolved at that level, then it is sequentially elevated to higher level personnel until the issue is either resolved or an impasse is reached. The goals of using a ladder are typically to resolve issues at the lowest level possible and before the issue has an impact on cost or schedule.

Issue resolution ladders are frequently found in the DOT’s partnering specification/policy.³ The language and content among issue resolution ladders are similar, particularly when they are set forth in the DOT’s partnering guides. They typically address the importance of the ladder as part of the partnering process as well as the process for working a dispute through the ladder.

The partnering guide for Arizona DOT (ADOT) provides a typical example.⁴ This guide states that an Issue Escalation Ladder will be established at the initial partnering workshop. Before or during that workshop, the project team will discuss, among other things: (a) how and when the ladder will be used; (b) what constitutes a disagreement and at what point the team members will “agree to disagree” and move to the next rung of the ladder; and (c) the time frames associated with each resolution level, with the goal being to ensure timely issue resolution. ADOT’s guide provides a sample of a completed escalation ladder that contemplates the following four levels:

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³ This digest did not attempt to research the details of each DOT’s partnering philosophy. However, it appears that several DOTs have not institutionalized partnering and/or do not formally identify partnering as part of their construction programs or dispute resolution processes. For example, the Massachusetts Department of Highways does not mention partnering in its standard specifications.

⁴ ARIZONA DEPARTMENT OF TRANSPORTATION, PARTNERING 101: GUIDE TO THE BASICS OF PARTNERING WITH ADOT, (May 2022), https://azdot.gov/sites/default/files/media/2022/05/partnering-101-a-guide-to-the-basics-of-partnering-with-adot.pdf (last visited September 29, 2023).

• Field Level. ADOT’s Lead Inspector and the Contractor’s Project Superintendent.
• Engineer/Project Manager Level. ADOT’s Resident Engineer and the Contractor’s Project Manager.
• Management Level. ADOT’s District Engineer and the Contractor’s Management.
• Senior Management Level. ADOT’s Deputy State Engineer and Contractor’s Senior Management.

ADOT’s guide encourages the parties to learn as much as possible about the disputed issue by documenting and agreeing on the issue details at the first (i.e., Field) ladder level. It recognizes that the individuals at that level may be able to reach an agreement but do not have authority to finalize that agreement. In that case, it is expected that they will document what is needed to ensure that the individuals at the appropriate level will be able to finalize the agreement. If the lower levels are not able to resolve the issue, ADOT’s guide suggests that the individuals at the next level meet as soon as possible, and come prepared with all of the information that was exchanged at the earlier levels.

Importantly, ADOT requires that if disputes rise to the third (i.e., Management) level or above, the parties must complete an Issue Resolution Routing Form and an accompanying Issue Escalation Binder. This formal process is intended not only to ensure that there is a clear communication of the status of the issues, but also to help ADOT management understand what types of issues are being escalated, with the hope that this can result in process improvements in the future.

The partnering guides of other DOTs have substantial similarity to ADOT’s guide. For example, the Washington State Department of Transportation (WSDOT) partnering guide also contemplates four levels for an issue escalation ladder, with the final level being the WSDOT State Construction Engineer and the contractor’s Owner/Principal.⁵ WSDOT encourages special, face-to-face meetings between the parties to address elevated issues, as opposed to having the escalation meeting as part of a regular weekly meeting. The WSDOT guide also notes that parties may want to develop a joint white paper before escalating the issue, to ensure that the information that led to the dispute is understood.

The California Department of Transportation (Caltrans) partnering guide explains that Caltrans has used formal partnering for over 30 years, and that a Dispute Resolution Ladder is part of Caltrans’ ADR process.⁶ The Caltrans ladder is similar to the ADOT and WSDOT processes, as it contemplates a five-rung ladder, with the final rung being meetings between the Caltrans’ Deputy District Director of Construction and the contractor’s Owner/President. The Caltrans guide also establishes specific time periods for the “time to elevate,” ranging from one day at the lowest rung of the ladder to two weeks at the higher rungs. Unlike some other DOT partnering guides, the Caltrans guide also explains where the Dispute Resolution Ladder fits into the overall ADR process if the parties are still at an impasse after going through the ladder.

The State of Maine Department of Transportation (MaineDOT) does not address dispute resolution directly in the partnering section of its standard specifications.⁷ However, the disputes provision of MaineDOT’s Standard Specifications contemplates that the parties may mutually agree in writing to any form of dispute resolution, “including mediation, facilitated negotiation, neutral case evaluation, arbitration, or litigation.”⁸ This means that the parties could create a project-specific issue ladder as part of a project-specific partnering process.

If nothing is agreed upon, the MaineDOT Standard Specifications creates a specific ladder for disputes. This starts with “Early Negotiation,” where MaineDOT’s project resident engineer and the contractor will negotiate to attempt to resolve that issue.⁹ If they are unable to do so within 45 days of the date the resident engineer receives the contractor’s notice, then the disputes process escalates to: (a) project level negotiation, with a decision to be made by the MaineDOT project manager; (b) negotiation by management, with a decision to made by the Bureau Director; and (c) appeal to the Commissioner, who will issue a final agency decision.¹⁰ While the MaineDOT specifications couch these processes in terms of “negotiation,” the verbiage suggests that the issue resolution ladder is actually based on formal submissions and decisions through the various rungs of the ladder as opposed to the negotiation process envisioned in other DOTs’ partnering guides.

2. Internal Processes to Reach Final Decisions

The claims procedures within most DOTs have explicit regimes for submitting and resolving disputes over time and money. It is beyond the scope of this digest to review the intricacies of these claims procedures, which generally involve the submission of certain information (e.g., notices, documentation, and price/schedule backup) within specific periods of time. However, for purposes of addressing nonbinding dispute resolution processes, these DOT claims procedures often have internal processes for reaching a “final decision”—i.e., the point at which the contractor will have to choose between accepting the DOT’s position or resorting to a binding resolution process, such as litigation or arbitration. As discussed in the following, some DOT processes contemplate formal reviews based on

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⁵ WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, PARTNERING FIELD GUIDE FOR WSDOT PROJECTS, (December 2020), https://wsdot.wa.gov/publications/fulltext/construction/WSDOTProjects-Partnering-FieldGuide.pdf (last visited September 29, 2023).

⁶ CALIFORNIA DEPARTMENT OF TRANSPORTATION, FIELD GUIDE TO PARTNERING ON CALTRANS CONSTRUCTION PROJECTS, (June 2022), https://dot.ca.gov/-/media/dot-media/programs/construction/documents/partnering/field-guide-to-partnering-a11y.pdf (last visited September 29, 2023).

⁷ MAINEDOT STANDARD SPECIFICATIONS SECTION 104.4.1 – PARTNERING (March 2020), https://www.maine.gov/mdot/contractors/publications/standardspec/docs/2020/2020%20Standard%20Specification.pdf (last visited September 29, 2023).

⁸ Supra note 7 at section 111.1.2 - Escalation Process.

⁹ Supra note 7 at section 104.4.5 - Early Negotiation.

¹⁰ Supra note 7 at sections 111.1-111.6.

documentation, while others seem to have flexibility in terms of how the “final decision” will be issued.

Many DOTs put the “final decision” in the hands of the DOT’s Commissioner. MaineDOT’s process, described earlier, does that. It includes a prescriptive process that requires the contractor to submit, within 14 days of the contractor’s receipt of the Bureau Director’s decision, specific information, such as: (a) all materials submitted to the Bureau Director and all decisions by the Bureau Director; (b) the findings of the Bureau Director that the contractor contends are contrary to law and/or fact; (c) any other new documentary evidence and written arguments the contractor wishes the Commissioner to consider; and (d) the specific relief sought. Unless directed otherwise by the Commissioner, the Commissioner’s review is limited to the documentation submitted.¹¹ If the contractor ultimately does not agree with the Commissioner’s decision, its “sole and exclusive means of judicial review” is to file a petition for review of the Commissioner’s decision in Maine Superior Court, Kennebec County.¹²

The Virginia Department of Transportation (VDOT) has a similar process, where the “final decision” rests with the VDOT Commissioner.¹³ If the contractor is dissatisfied with VDOT’s decision concerning a claim that has gone through the claims process, it has the right to request an appearance before the commissioner to present the claim and discuss material previously submitted. The meeting between the commissioner and contractor is to take place within 30 to 60 days of the contractor’s request. If a hearing is requested, the commissioner is briefed on what has been previously submitted and/or developed with respect to the dispute by VDOT staff. The commissioner is to provide a response to the contractor within 45 days of the date of the hearing, subject to extension by mutual consent of both parties. If the commissioner’s offer is accepted, the settlement may be subject to approval by the Governor and Commonwealth Attorney General. Assuming it is approved, the case is then closed. If the commissioner’s offer is rejected, the contractor may choose to litigate and has one year from the receipt of the commissioner’s decision in which to file litigation.

The Alaska Department of Transportation and Public Facilities (Alaska DOT&PF) has a process similar to VDOT’s. If a conflict cannot be resolved informally, the contractor is required to submit to the project engineer a notice of intent to claim. The Alaska DOT&PF contracting officer has 90 days from receipt of the claim package to issue a decision. If the contractor disagrees with the decision, there is the ability to appeal to the commissioner, who can decide the matter without a hearing. If the contractor is ultimately not satisfied with the commissioner’s decision, the contractor’s recourse is in litigation.¹⁴

Other DOTs have a more comprehensive process for reaching an internal final decision that is subject to a contractor’s right to request binding dispute resolution. For example, the Massachusetts Department of Transportation (MassDOT) requires the chief engineer to render a final written decision on a claim.¹⁵ If a construction contractor disagrees with that decision, the contractor has the right to bring its claim to the Office of the Administrative Law Judge, where an administrative law judge will write a report and recommend a decision to the Massachusetts Secretary of Transportation.¹⁶ If the contractor disagrees with the secretary’s decision, it then has the right to sue the DOT for its claim.¹⁷

B. Nonbinding Dispute Resolution Processes Using Third Parties

DOTs, just like many other construction owners, often use third parties to help facilitate the resolution of disputes with their construction contractors. This section will address the four most common types of nonbinding processes: (a) facilitated partnering; (b) independent experts; (c) mediation; and (d) DRBs. While each of these third-party processes vary in terms of process, duration, and formality, they all have one common attribute—they are nonbinding processes where the independent third-party provides input that is intended to help the parties settle their differences.

Given this, it is important to remember that the use of these processes is typically not dependent upon having exhausted the DOT’s administrative processes described in the preceding section. For example, it may not be in the best interests of the parties to have the DOT commissioner issue a final decision before the parties have used had an independent third party (e.g., an independent expert or a DRB) to consider the positions of the parties and provide a neutral’s view as to their respective strengths and weaknesses.

1. Facilitated Partnering

Partnering has long been used on DOT projects. At its most basic level, partnering is a team-building effort in which the parties establish a cooperative working relationship based on commitment and communication. It is typically initiated soon after the contractor is under contract, and starts with a formal

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¹¹ Supra note 7 at section 111.5 - Appeal to Commissioner.

¹² Supra note 7 at section 111.6 - Judicial Review.

¹³ VIRGINIA DEPARTMENT OF TRANSPORTATION, VDOT CONSTRUCTION AND MAINTENANCE CLAIMS AND NOTICE OF INTENT TO FILE CLAIM (NOI) GOVERNANCE DOCUMENT, (January 2017), https://www.virginiadot.org/business/resources/const/ClaimsManual.pdf (last visited September 29, 2023).

¹⁴ ALASKA CONSTRUCTION MANUAL SECTION 9.13 - CLAIMS AND DISPUTES (February 16, 2021), https://dot.alaska.gov/stwddes/dcsconst/assets/pdf/constman/2021/acm_all.pdf (last visited September 30, 2023).

¹⁵ MASSDOT STANDARD SPECIFICATION (DIVISION 1) SUBSECTION 7.16 - CLAIMS OF CONTRACTOR FOR COMPENSATION (2023), https://www.mass.gov/doc/2023-standard-specifications-for-highways-and-bridges-division-i/download (last visited September 29, 2023).

¹⁶ MASSDOT STANDARD OPERATING PROCEDURES, OFFICE OF THE ADMINISTRATIVE LAW JUDGE RULES OF PRACTICE AND PROCEDURES DISTRIBUTION, (April 1, 2016), https://www.mass.gov/doc/standard-operating-procedure-alj-01-01-1-000/download (last visited September 29, 2023).

¹⁷ M.G.L. c.6C, §40.

meeting where the parties, among other things: (a) become acquainted with each other; (b) discuss each other’s goals and expectations; (c) agree to have open communication; and (d) determine how to address conflict. As noted earlier, the development of issue resolution ladders is one of the typical outcomes of the first partnering session.

Partnering can either be self-facilitated—i.e., the parties create and administer the process without the use of a third-party facilitator—or facilitated by an outside neutral. For example, the Ohio Department of Transportation (ODOT) uses self-facilitated partnering on all ODOT projects, and only considers partnering sessions facilitated by a third-party as an option for projects valued over $5 million.¹⁸

From the perspective of dealing with dispute resolution, facilitated partnering creates some opportunities to have the third-party facilitator help parties that are at loggerheads. The ODOT partnering guide characterizes the facilitator “as a professional neutral focused on helping the project team to collaborate, build consensus on common goals and objectives, communicate effectively, establish performance metrics, proactively plan/look ahead, and prevent and resolve disputes at the project level.” Importantly, ODOT sees the partnering facilitator as having a role quite distinct from other dispute neutrals, including DRBs:

The Caltrans partnering guide specifically discusses using the partnering facilitator as part of a “facilitated dispute resolution process.” Caltrans considers this process to be more formal than an issue resolution ladder, as it is “an extension of the partnering process, bringing together involved project stakeholders to work toward agreement on outstanding disputes.” Caltrans states that this process has proven to be “highly effective in helping the team resolve complex issues … [as the session] is a forum for the decision makers to find out the facts surrounding the issues and to resolve the disputes for each issue based on its merits.” The guide specifically states that it is not appropriate for DRB members to be present at these types of sessions.

While both Caltrans and ODOT have published guidelines that address the use of facilitated partnering in their dispute resolution processes, it is commonly known that other DOTs that use third-party partnering facilitators will often have that facilitator participate in the resolution of conflicts between the parties. The reasons for this are expressed by the Caltrans and ODOT guidelines. Strong partnering facilitators have an ability to get people talking, which might be enough motivation to resolve a dispute. Consequently, there is strong empirical evidence that facilitated partnering has a positive impact on resolving construction disputes. That said, because partnering facilitators generally do not have the same understanding of the nuances of construction contracts and claims, there is a practical limit as to how effective they can be in helping to resolve more complicated construction disputes. This is why parties often turn to other third-party neutrals—such as independent experts, mediators, and DRBs—to help get matters resolved.

2. Independent Experts

When there is a discrete, technical issue that the parties cannot agree upon, they may seek to jointly retain an independent expert to offer an opinion on the merits of the issue. Independent experts typically meet with the parties both together and separately, obtain information from them, and then provide their opinions. Sometimes the opinion is in writing. At other times, it may be presented verbally to the parties, with the premise being that the expert issues its findings in the manner that best helps the parties resolve the dispute.

It is not unusual for contracts to be silent on the use of independent experts, but to have the parties agree during the course of the project that an independent expert could help. Other contracts will use high-level language that introduces the concept of independent expert and leaves the details to be worked out if and as needed. An example of this is the following, which comes from the design-build contract on Phase 1 of the Dulles Corridor Metrorail Project Rail:

Other contracts can be more specific about both how to select an independent expert and how to use the expert’s opinion. For example, VDOT’s contract on the Elizabeth River Tunnel project contained the following language to deal with disputes between the parties over the commercial availability of insurance:

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¹⁸ https://www.transportation.ohio.gov/working/construction/construction-admin/partnering/facilitated-partnering (last visited November 30, 2023).

¹⁹ OHIO DEPARTMENT OF TRANSPORTATION, ODOT’S PARTNERING FACILITATOR STANDARDS AND EXPECTATIONS GUIDE, DIVISION OF CONSTRUCTION MANAGEMENT, (2013), https://www.transportation.ohio.gov/wps/wcm/connect/gov/b9774d3c-0dfe-4dc8-ae1a-d2692ef6c54e/ODOT+Partnering+Stand+Expect+Final.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_M1HGGIK0N0JO00QO9DDDDM3000-b9774d3c-0dfe-4dc8-ae1a-d2692ef6c54e-ohxxwTb (last visited September 30, 2023).

²⁰ Section 28.1.3 - Independent Expert, Amended and Restated Design-Build Contract for Dulles Corridor Metrorail Project, by and between The Metropolitan Washington Airports Authority and Dulles Transit Partners, LLC (July 25, 2008).

This was an excellent example of how valuable the use of an independent expert can be. Based on the cited provision, it is apparent that during contract negotiations VDOT and the Concessionaire forecasted a potential dispute related to a complicated aspect of their relationship (i.e., insurance). They determined that the best way to deal with that dispute was with the active involvement of an independent expert.²²

3. Dispute Review Board (DRB)

One of the most typical nonbinding ADR processes used on DOT projects is the establishment of a board of impartial, experienced professionals who, among other things, are charged with providing reasoned recommendations to the parties on how the dispute should be resolved.²³ These boards are commonly referred to as “Dispute Review Boards” or “DRBs.” Depending on the contract/specification, they can also go by other names – e.g., Dispute Board, Dispute Resolution Board, Dispute Review Panel, and Dispute Avoidance Board. By way of example: (a) the Florida DOT, the Idaho Transportation Department, and the Colorado DOT use the term “Dispute Review Board;” (b) Caltrans and Ohio DOT use the term “Dispute Resolution Board;” (c) Texas DOT uses the term “Dispute Review Panel” for its nonbinding DRB process; and (d) the Dispute Resolution Board Foundation (DRBF), a non-profit organization that promotes the DRB method, uses the term “Dispute Board.”

There are several ways to structure a DRB, depending upon, among other things, whether the DRB will: (a) have a role that involves both dispute resolution and dispute avoidance; (b) have one or three members; and (c) will be involved throughout the project (i.e., a “standing” DRB) or will be convened for specific matters and disputes (i.e., an “ad hoc” DRB). The structure is identified by the DRB specification and/or contract provision dealing with disputes.

The approach advocated by the DRBF and used by most DOTs is a “traditional” DRB, which contemplates that a three-member board will be convened at the beginning of the project, involved throughout the project, and have a role that includes dispute avoidance. The dispute avoidance role is something that distinguishes DRBs from other forms of nonbinding dispute resolution, in that the DRB will periodically meet with the parties over the course of the project to visit the site and understand how the project is performing. This active involvement not only helps the parties avoid disputes but enables the DRB to be more effective in carrying out its dispute resolution responsibilities – as the board members acquire detailed knowledge and information about the project and have a deeper and more accurate understanding of the parties’ positions surrounding any particular dispute. It also allows the board members to develop a relationship with the parties that is built on confidence and trust, increasing the likelihood that the parties will accept the DRB’s recommendations if and when disputes arise.²⁴

Many DOTs use traditional DRBs on their construction programs. Some DOTs, like Florida DOT and Ohio DOT, require the use of DRBs on all of their projects.²⁵ Others have limitations on when a DRB will be used (e.g., Caltrans requires DRBs on all projects with a bid over $10 million).²⁶ However, certain DOTs that use traditional DRBs also have an option to use DRBs with only one member, which they believe helps streamline the process and makes it more affordable. Caltrans and ODOT both use this process and refer to this individual as a “Dispute Resolution Advisor,” or “DRA.” Caltrans requires DRAs on projects with a total bid of between $3 million and $10 million.²⁷

While some DOTs do not routinely use traditional DRBs on their projects or call for them in their specifications, they do employ them on a limited basis. For example, each of the following DOTs determined that traditional DRBs were appropriate for some of their large, complicated projects delivered through design-build or some form of public-private partnership: (a) Virginia DOT (Hampton Roads Bridge Tunnel Project); (b) Pennsylvania DOT (Rapid Bridge Replacement P3 Project); (c) the District of Columbia DOT (South Capitol Street Corri-

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²¹ VIRGINIA DEPARTMENT OF TRANSPORTATION, SECTION 17.05 (UNAVAILABILITY OF INSURANCE), COMPREHENSIVE AGREEMENT RELATING TO THE DOWNTOWN TUNNEL/MIDTOWN TUNNEL/MARTIN LUTHER KING FREEWAY EXTENSION PROJECT, https://civmetrics.com/wp-content/uploads/2022/04/Midtown-Tunnel-P3-Project-in-Virginia-Elizabeth-River-Tunnels-Agreement.pdf, (last visited September 30, 2023).

²² The Elizabeth River Tunnel project was delivered as a public-private partnership, with the project’s construction being completed in 2017.

²³ The literature is rich on the subject of DRBs and their use on transportation projects and it is beyond the scope of this digest to provide substantial detail about this subject. Readers who want to know more should consider visiting the Dispute Resolution Board Foundation website for further information and insight, available at https://www.drb.org/ (last visited December 3, 2023).

²⁴ DISPUTE RESOLUTION BOARD FOUNDATION, DISPUTE BOARD MANUAL: A GUIDE TO BEST PRACTICES AND PROCEDURES CHAPTER 3, - BOARDS AND OTHER ADR PROCESSES, (2019).

²⁵ FDOT CONSTRUCTION PROJECT ADMINISTRATION MANUAL Section 3.4 DISPUTE REVIEW BOARD, PRECONSTRUCTION ACTIVITIES (May 25, 2023).

²⁶ https://dot.ca.gov/programs/construction/drb-information-and-candidate-list (last visited October 1, 2023).

²⁷ https://dot.ca.gov/programs/construction/dra-information-and-candidate-list (last visited October 1, 2023).

dor Project); and (d) Georgia DOT (I-285/I-20 East Interchange Project).

Experience has shown that some DOTs use ad hoc DRBs, particularly on public-private partnership projects. Unlike the standing DRB, an ad hoc DRB is first involved when the project is significantly advanced and the parties have, or expect to have, outstanding disputes. Ad hoc DRBs typically do not have regular meetings, and thus their members do not have the benefit of seeing the project and party personnel over an extended period of time. Instead, the ad hoc DRB typically interacts with the parties in a manner similar to an arbitration panel, which is in connection with the prehearing and hearing process associated with the dispute.

Regardless of the form of DRB, the key to a DRB’s success in helping to resolve disputes is to have the board members be respected, trusted, and viewed as impartial by all the parties – as the board is providing a nonbinding recommendation for the parties to consider as they resolve their disputes. Members of a traditional standing DRB often include a mix of technical individuals (e.g., engineers, contractors, lawyers, and consultants), all of whom are specialists in construction work. Lawyers may or may not be selected as board members. While the same composition can be true for an ad hoc DRB, it is more common for some or all of the members to be lawyers or claims consultants, as the function of the ad hoc DRB is, for all practical purposes, purely dispute resolution as opposed to including dispute avoidance.

A common way to select DRB members is for each party to nominate a proposed member for approval by the other party. Once the party-appointed members are in place, they will agree upon a chairperson, subject to the approval of both parties. Another common way is for the parties to jointly select each member of the board. One of the benefits of this approach is that the parties can match member qualifications with the types of issues that might arise on the project. For example, on a tunneling project, the parties may decide that they need to have slots filled by those with certain substantive expertise – such as a geologist/geotechnical engineer, a construction contractor experienced in tunneling, and a lawyer or claims consultant.

Those DOTs that regularly use DRBs on their construction projects maintain a list of approved DRB members. This is the case with Caltrans,²⁸ Florida DOT,²⁹ Colorado DOT,³⁰ and Washington DOT,³¹ among others. These DOTs have specific requirements for being included in the DRB pool. For example, Caltrans requires applicants to have a minimum of 10 years’ experience in any combination of: (a) supervisor, manager, or executive in public works heavy highway construction contracts with emphasis in resolution of disputes arising out of said contracts; (b) attorney representing parties in litigating or arbitrating public works heavy highway construction contract claims; and/or (c) judge or arbitrator adjudicating or otherwise resolving public works heavy highway construction contract claims. Caltrans also requires applicants to have completed Caltrans-provided DRB training which covers, among other things, the Caltrans standard specifications.³² Florida DOT is less prescriptive and notes that “it is desirable that each potential DRB member have at least ten years of experience with the type of construction involved in a project, in the interpretation of contract documents, and in contract dispute resolution.”³³

In its dispute resolution role, the DRB conducts informal hearings on disputes that are presented to it and provides the parties with reasoned recommendations as to how it believes disputes should be resolved. DRB specifications and the operating procedures developed by the DRB will outline the process for how disputes will be heard. There is substantial similarity in the DRB specifications among DOTs, with many of the specifications being derived from what the DRBF advocates as best practices.

The formal dispute process usually involves each party providing position papers, documents, and evidence related to the dispute, with each party then being given the opportunity to respond to the other party’s submissions. A hearing/conference is held by agreement of the parties, or when the DRB requires it from the parties, which hearing/conference allows the parties to further explain their respective positions and to respond to the other side’s case. Lawyers may or may not be permitted during such hearings, depending on the DRB specification. Following the presentation and submission of all relevant material, the DRB produces a written recommendation, including the DRB’s analysis and reasoning. The time period for rendering the recommendation typically will be included in the DRB specification.³⁴

A traditional DRB’s recommendations are nonbinding, although the DRB specification often states that unless a party objects to the recommendation within a certain period of time the recommendation will be considered binding. The bigger question is often whether the recommendations are admissible in subsequent arbitration or litigation proceedings. While it is common for the recommendations to be admissible, some DOTs (e.g., Idaho Transportation Department (ITD) and Virginia DOT) preclude the recommendations from being admissible in a later disputes process; they prefer that the trier of

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²⁸ https://dot.ca.gov/programs/construction/drb-information-and-candidate-list/drb-candidates-list (last visited October 1, 2023).

²⁹ https://www.fdot.gov/construction/CONSTADM/drb/DRBList.shtm (last visited October 1, 2023).

³⁰ https://www.codot.gov/business/designsupport/dispute_review_board/drb-candidates/drb-approval-list (last visited October 2, 2023).

³¹ https://wsdot.wa.gov/publications/fulltext/Construction/DisputesReviewBoard-StatewidePrequalifiedDRBCandidateRoster.pdf (last visited October 2, 2023).

³² https://dot.ca.gov/-/media/dot-media/programs/construction/documents/dispute-resolution/drb-dra-candidate-application-instructions.pdf (last visited October 1, 2023).

³³ https://www.fdot.gov/construction/CONSTADM/drb/DRBList.shtm (last visited October 1, 2023).

³⁴ DISPUTE RESOLUTION BOARD FOUNDATION, DISPUTE BOARD MANUAL: A GUIDE TO BEST PRACTICES AND PROCEDURES, Chapter 4, “The Dispute Process,” (2019).