Journal of Legal Affairs and Dispute Resolution in Engineering and Construction

Forum papers are thought-provoking opinion pieces or essays founded in fact, sometimes containing speculation, on a civil engineering topic of general interest and relevance to the readership of the journal. The views expressed in this Forum article do not necessarily reflect the views of ASCE or the Editorial Board of the journal.

Forum papers are thought-provoking opinion pieces or essays founded in fact, sometimes containing speculation, on a civil engineering topic of general interest and relevance to the readership of the journal. The views expressed in this Forum article do not necessarily reflect the views of ASCE or the Editorial Board of the journal.

Forum papers are thought-provoking opinion pieces or essays founded in fact, sometimes containing speculation, on a civil engineering topic of general interest and relevance to the readership of the journal. The views expressed in this Forum article do not necessarily reflect the views of ASCE or the Editorial Board of the journal.

This literature review explores the topic of forensic delay analysis (FDA), highlighting recent advances and key themes currently attracting research interest within the area. Project delays in every context can have significant financial and non-financial impacts, so it is crucial to accurately identify and assess their influence. Our analysis shows that despite the initial conceptualization of FDA methods and tools, the field remains complex and laborious, and its credibility is often contested too. The findings suggest that FDA has received insufficient research attention compared to other project management domains and has made limited progress since its inception. Furthermore, there is no consistent approach to measuring delays, despite their prevalence, severity and global persistence. Although a wide range of publications acknowledge the continuing interest in FDA, most confirm its limited applicability and inadequate standardization. The literature also highlights a lack of progress in this area of knowledge predominantly due to a lack of innovative perspectives, tools and understanding. In order to improve the credibility and reliability of FDA and delay analysis techniques (DATs), it is therefore essential to embrace and promote alternative and innovative methodologies. This paper will appeal to a wide audience, including academics and practitioners, who wish to explore the limitations of FDA and the knowledge gaps identified in the existing literature.

The Red Hill facility is an underground fuel storage facility located in Oahu, Hawaii. It was opened in 1943, perceiving an urgent need during WW II to store fuel, and cost USD 42.2 million to construct. The fuel storage facility consists of twenty steel-lined underground storage tanks that can store 12.5 million gallons of fuel. Recently this site became a topic of interest again when approximately 19,000 gal. of fuel leaked into the surrounding water aquifers ultimately leading to the closure of three major water supplies to the island of Oahu. This fuel leak affected the water supply of around 93,000 Hawaii residents, including military personnel. Homes, schools, and businesses around the affected area reported fuel-contaminated water and health problems related to fuel exposure. This article will examine the legal history of the Red Hill fuel storage bunkers, the division of power between state and federal entities, and the legal challenges that the State of Hawaii surmounted to ultimately close the facility.

The principle of minimum interference of courts into the arbitral proceedings has been vital for the success of international commercial arbitration. The autonomy of the parties to choose their arbitrators based on expertise and parties’ interest in confidential proceedings shall not be compromised by courts supervision or review. The cross-border nature of disputes requires the arbitrators to determine the applicable law following the arbitration rules and laws and the conflict of laws analysis provided therein. The accuracy of the arbitral award will often depend on the accuracy of the conflict of laws analysis. The main principles such as party autonomy, confidentiality, or efficiency are followed under the assumption that the award will remain accurate. Yet arbitral awards issued without any conflict of laws analysis can hardly be challenged by the parties. The determination of the applicable laws falls under the undesirable court’s review on merits, that the arbitration world has successfully fought against at latest since the entry into force of the New York Convention of 1958. It is the purpose of this paper to explore to which extent a review of the conflict of laws analysis would endanger main principles of international commercial arbitration and to propose solutions which may be accepted by the international arbitration community.

Contractors bidding on unit price contracts frequently utilize unbalanced bidding, particularly for public construction projects. Contractors’ use of unbalanced bids takes various forms and occurs at differing degrees to accomplish a multitude of goals. This paper adopts a qualitative research methodology and presents an overview of the models developed by construction scholars to assist contractors in unbalancing their bids. This paper includes the author’s evaluation of the types of unbalanced bidding studied, the tools utilized to optimize unbalanced bidding, and the justifications provided by the authors of such studies supporting the legitimacy of the practice of unbalanced bidding by contractors. The overview also examines whether the authors of those studies addressed the morality of unbalanced bidding and how such a practice impacts the owners of such projects. The paper ends with a discussion of the acceptability of the contractor’s motives for unbalanced bidding from the owner’s perspective. The analysis in this paper should be beneficial to both bidding officials and contractors. Contractors may select from the available tools and strategies presented in the available literature reviewed to educate themselves about the risks and limitations associated with unbalanced bidding. Bidding officials will achieve a better understanding of the bidding strategies employed by contractors and the factors motivating contractor’s actions so they may enhance and improve their existing procurement and bid evaluation practices and procedures. The author anticipates that this paper will assist construction industry participants in proactively addressing and resolving issues with the practice of unbalanced bidding.

Previous research has shown that several operational mechanisms are offered Aby standard forms of construction contract conditions to address the administration and resolution progression of claims and disputes. However, it is still unknown to practitioners as to which set of operational steps can be viewed as most effective in allowing an optimum such progression. The work presented in this paper examines this exact progression optimality property by conducting agent-based modeling (ABM) simulations, to compare the real-life effectiveness of the six standard forms of contract conditions that are in use. The adopted methodology involved: (1) developing the conceptual models, (2) formulating the simulation rules, (3) building the ABM simulation models, and (4) verifying and validating each of them, to respectively check both whether the model in question was built right and whether the right model was built. The findings are presented through an in-depth analysis of the outputs, namely (1) average time to have a binding judgment, (2) percentages of claims/disputes resolved upon reaching agreement, (3) average time to reach agreement, (4) percentages of claims/disputes ending up in an unregulated period, and (5) percentages of claims/disputes referred to arbitration. The work contribution is in the form of a proposed optimum mechanism, involving a preferably long consultation stage to precede the initial judgment one, and the subsequent inclusion of a time-regulated adjudication step followed by a mediation stage regulating the referral of unresolved disputes to arbitration.

Recent studies indicate that issues in compliance with building energy codes (BEC) are closely linked to practitioner’s varying compliance behavior, which jeopardizes BEC’s effectiveness and low-carbon target. Compliance usually means conforming to a rule, however what concerns BEC is going beyond minimal compliance. While building authorities introduce various interventions to promote practitioner’s compliance, magnitude of behavior changes from these interventions is unknown. In addition to this, variables from disciplinary-isolated compliance theories may generate a limited understanding concerning practitioner’s compliance behavior. Thus, this paper aims to conceptualize a cross-theoretical assessment model for building practitioner’s compliance behavior with BEC. This is achieved over two steps. First, an assessment for individual practitioner’s BEC compliance behavior is designed, integrating theory of planned behavior with compliance models from disciplines across criminology and psychology. This illustrates the variables that shape practitioner’s compliance behavior, and classifies the practitioner’s compliance behavioral states into: (1) not intended to go beyond minimal compliance, (2) intended but unsuccessful to go beyond minimal compliance, and (3) intended and successful to go beyond minimal compliance. Second, the model is expanded to aggregate-level by incorporating social influence theory. This enables a group-level time-dynamic assessment that considers interconnected practitioners’ interactions. This model thus demonstrates assessment mechanism of characterizing building practitioner’s emergent compliance behavior that results from inter-person interactions and regulatory interventions. Though this conceptual model is not yet empirically tested, it is designed based on well-established theories to ensure credibility. Eventually, this study informs authorities to formulate suitable and tailored interventions to promote compliance with BEC.

Abstract

Design-build (DB) contracts transfer the responsibility for design quality control to the design-builder. Hence, the owner’s role becomes one of quality oversight and its involvement in the technical review of design deliverables becomes very different than in a traditional design-bid-build (DBB) design contract. The speed with which DB projects are delivered puts design approval on the critical path, creating a need to expedite design quality control activities to achieve release for construction (RFC) documents. It also creates a situation where owner-generated comments can result in delay claims. This paper reports the use of design quality audits as a claim avoidance tool and presents a framework for implementing design quality audits. A case study illustrating the implementation of the framework on a large DB wastewater project is presented. The paper’s contribution is showing that the design quality audit allows the owner to perform its due diligence responsibility to monitor DB project quality in a manner that does not usurp the design-builder’s responsibility to produce quality construction documents and avoid becoming the sources of project delay claims. It also finds that design quality issues must be given visibility to facilitate the timely response to and correction of contract noncompliance.

Practical Applications

A well-crafted design quality audit program furnishes the DB project owner with a means to satisfy its quality oversight responsibility without disputing the design-builder’s design progress and become embroiled in a contentious and time consuming comment resolution process. To realize the benefit, the audit program framework must be in place before advertising the DB project. The project’s solicitation documents can then refer to the audits and competing design-builders can price and schedule recurring audits in their proposals. After award, the subsequent development of the design-builder’s QMP must address the process for facilitating the owner’s quality audits as a contract requirement. A pragmatic consideration is ensuring that the design-builder’s designer-of-record (DOR) promulgates the contractual audit process down to its design subconsultants and the general contractor include the audit process as part of its construction engineering consultants for the design of temporary works. The key component is to describe the contractual requirements for design quality audits before design-builders respond to the request for qualifications (RFQ) and request for proposals (RFP), giving the design quality audit the same prominence as the other contract administrative requirements that the design-builder must satisfy to be paid.

Construction workforce is constantly subjected to adverse weather conditions. They perform physically demanding activities despite exposure to unfavorable weather conditions, making them vulnerable to long-term health challenges. The lack of sufficient rest periods to recover when performing in such conditions makes them even more exhausted and fatigued, which also leads to risking the workplace safety. Thus, the aim of this study is to examine the various factors that lead workers for longer rest periods when performing in cold weather conditions. To accomplish this, a survey questionnaire was designed and disseminated to workers in the construction industry. The survey received 100 responses, and the collected data was used to develop a predictive model. The results indicated that manual dexterity, lack of efficient protective clothing and cold protection plan at the work site contribute significantly to the workers need for extended periods of rest. The findings of this research may aid employers in the construction industry create an effective cold weather work-rest schedule, as well as in understanding various health challenges construction workers experience in cold temperatures.

The increasing volumes of public procurement have a concomitant challenge of corruption. This study widens the discussion on corruption by incorporating the various morphologies of integrity transgressions. Literature survey followed by a Delphi study with anti-corruption experts yields eight distinct types of integrity violations in the Indian public sector. Simultaneously, it generates a framework of 22 critical tools and mechanisms that describe the integrity climate of procurement. A survey across diverse public organizations in India involving 193 practitioners is undertaken to evaluate the level of implementation of the integrity climate measures and the frequency of integrity violations. Their mutual relationship is investigated by partial least square structural equation modeling using SmartPLS 4, which yields a robust model with high predictive power. The model shows a significant path with a strong negative coefficient ($-0.506$) between the organizational integrity climate and the integrity violations, thus cogently proving the mitigating influence of the integrity climate on the integrity violations by members. This research is the maiden effort to assess the typologies of integrity violations in public organizations in India and determine their response to the organizational integrity climate. It offers practical insights to managers and policymakers that will improve project integrity outcomes while enriching the domain knowledge of integrity management in procurement.

Building information modeling (BIM) is a digital process that represents a structured approach for integrating project stakeholders and information, managing the technical complexities of construction projects, and valuing improved collaboration among the key stakeholders. Due to the promising potential of BIM, its implementation began to be mandated in many countries. With the rise of BIM implementation and its regulations, the conventional organizational practices in the construction sector have been changed and new areas of concern are raised, which can be considered as BIM legal and contractual risks and challenges. Although resolving BIM legal issues can be a major lever to implement it in industry, research in this area has been scarce which may lead to probable legal claims. This research intends to fill this gap in the body of knowledge by conducting a systematic literature review to identify such risk factors which can lead to claims in BIM projects. The findings reveal an elaborate list of BIM challenges and risks, categorized against the key BIM risk categories including contract documentation, coordination and collaboration, public agencies, and technical resources. Moreover, the study contributes to the field by increasing the level of awareness of construction professionals about BIM risks and challenges.

Abstract

The construction industry is one of the sectors with the highest number of corruption cases. Construction workers are subjected to a variety of corrupt practices in the course of their work. Corrupt practices have a negative impact on the construction industry’s growth and performance. Several previous studies have revealed a link between culture and corrupt practices. As a result, a context-specific study with a systematic approach to evaluating corrupt behaviors in the construction business is required. In this light, this study addresses the topic by developing an anticorruption framework based on the perspectives of Indonesian construction professionals. An elaborate approach was used in this research consisting of systematic literature review, questionnaire survey, and expert interviews. A systematic literature review was conducted to identify various aspects of corrupt practices in the construction industry. In order to contextualize this study in the Indonesian context, a questionnaire survey was undertaken to examine the extent of perceptions of corruption aspects among Indonesian construction workers. The synthesis of both findings was used to develop an anticorruption framework that was validated through expert interviews. The framework displays a robust system for identifying corrupt practices, challenges, and strategies for eliminating corruption in the Indonesian construction industry. This study helps to understand the underlying reasons and other aspects of corruption in the Indonesian construction industry. Understanding these aspects is critical in order to solve the rampant corruption in the construction sector.

Practical Applications

The study’s findings can assist stakeholders in understanding various underlying dimensions related to corrupt practices in the construction industry, including (1) general overview of corruption practices, (2) frequency of corruption, (3) forms of corruption, (4) causes of corruption, (5) impact of corruption, (6) mitigation strategies, and (7) challenges in eradicating corrupt practices. A construction sector anticorruption framework was also effectively constructed through a context-specific study in Indonesia. Practically, stakeholders can use the study’s results to take appropriate measures in eradicating corrupt practices and fostering an anticorruption culture in the construction sector. Theoretically, this study contributes by presenting existing corrupt practices in the construction industry and facilitating understanding of the interconstruct relationship of corruption in the industry.

The meteoric rise in the diffusion of digital practices in the built environment domain, specifically using BIM via governmental mandates, is evident in some countries. Moreover, sustaining these digital practices is based on adequate information management at various construction interfaces. The recent rollout of the information management standards series, such as ISO 19650, has been released to provide a common standard of practice, workflows, and guidelines for all the stakeholders working within the information management domain in the construction supply chain (CSC) at a global level. Although these international standards for information management are in place, many firms either do not implement them or need to improve efficiency in implementation. Therefore, the perceptions of construction players on using these ISO 19650 series standards are essential to understanding the level of engagement, diffusion of digital practices, and information management from the construction supply chain players’ perspectives. This research aids in understanding the implementation benefits, challenges, and impact of ISO 19650 over construction 4.0 and strategies. To this end, this study aims to understand the perceptions of ISO 19650 series standards in realizing benefits, issues, and standardization of their processes while adopting them in construction projects. As this study is exploratory, a qualitative approach with twelve semistructured interviews formed the prime source of data collection. The thematic analysis of the semistructured interviews generated a framework of ISO 19650 standards implementation. This study’s outcome includes the perceptions of CSC players regarding the international information management standards, benefits/diffusion of practice, challenges, and tackling the issues through a six-level framework for adopting ISO 19650 standards. The outcomes from the issues point of view of ISO 19650 implementation were standards interpretation, fixed mindset, systemic problems, and lack of in-depth understanding. This study is one of the niche studies that explored the implementation of ISO 19650 standards for information management practices specific to building information modeling (BIM) for a construction engineering and management audience.

Conflicts are frequent in public–private partnerships (PPP) due to the involvement of multidisciplined parties within the process. Individual parties among the numerous stakeholders often work toward achieving their own desired goals. Early identification and elimination of potential conflicts are significant to achieving a smooth delivery process of PPP projects. PPP offers imperative benefits for economic development, especially in developing countries. However, despite the huge potentials of PPP in infrastructure development, limited attention still exists in the early stage on the prevention of conflict. Aside from that, a more focused investigation is required across different locations. Therefore, this study aims to enhance the understanding of conflict occurrence and articulate steps to conflict prevention in PPPs through preconstruction stage practices. Expert interviews were carried out in two phases. Phase I identified the current process and triggers of conflicts and Phase 2 identified the strategies, and recommendations to eliminate the conflicts. The purposive sampling method was used for the selection of experts in Sri Lanka and findings were analyzed using the content analysis method. This study identified and categorized the triggers of conflicts in PPP as political interference and public interruption, lack of knowledge about PPP, contractual agreement, and commitment of professionals. Further, the strategies to prevent conflicts were discussed under key headings such as proper professional practice, use of lessons learned, thorough contract drafting, a well-defined program, precontract practices, project-long audits, awareness programs, and government support.

Broadband infrastructure across the United States is at various stages, ranging from unserved areas to gigabit network cities with fiber optic. Despite broadband being essential for access to education, economic transactions, and many other interactions in our society, expanding coverage in rural areas remains a barrier to reducing inequality and closing the digital gap. To resolve this problem, the public sector has collaborated with the private sector through partnerships, enabling rural areas to leverage broadband projects with money, technology, and industry expertise from the private sector. While efforts are being made to close the digital gap, discussions on how to deliver the project well under various conditions are necessary. In this respect, this research investigates public–private partnership (P3) business models for enhancing broadband initiatives in the United States. The results are derived based on interviews with subject-matter experts and extensive literature review, providing rationales for previous P3 broadband business models. This study will contribute to the body of knowledge by promoting partnerships between private entities and the public to expand broadband initiatives in unserved and underserved communities.

Construction project delays are a common issue faced by the industry worldwide, leading to disputes among project stakeholders and generating additional costs. This study analyzes construction project delay disputes, using randomly selected litigated cases of delayed construction projects from Kuwait. Data from 40 real delay dispute cases obtained from the Department of Experts at the Ministry of Justice in Kuwait were analyzed, and a multilinear regression model was developed to predict the claimed value resulting from delay disputes, which could be a crucial aspect in determining legal system fees and project cost estimations. The study compared real case dispute analysis with those previously published. The results of the study revealed that the most common source of delay disputes is those between the client and contractor, forming about 75% of the total delay disputes cases and 97% of claimed values. Additionally, the findings showed that there are significant differences between the real-world causes of delay disputes and previous research results on the topic. The findings highlight the importance of understanding the causes of construction project delays and improving project cost estimation during the tendering process. This research has practical implications for stakeholders in the construction industry who are aiming to minimize the negative impacts of project delays and disputes, and effectively manage delay conflicts in the future.

The effects of planning and building on health, safety, and well-being of the community and the environment bears an enormous burden of responsibility on civil engineers. A total of 38% of the ${\mathrm{CO}}_2$-emissions worldwide can be traced back to the construction industry. Thus, planning and building in respect with nature and natural resources has become a topic of increasing importance in civil and structural engineering. Global warming, dwindling resources, and increased environmental pollution force the construction industry to develop new strategies for planning and building in the next decades. Sustainability has become one of the key factors in construction and has found its way in the engineers’ daily work life. Consequently, in the last years, this issue was implemented in professional codes of ethics. Codes of ethics or codes of professional conduct are developed by engineers’ organizations or professional associations They express the rights, duties, and obligations of the members of the profession and shall serve as a guide in making decisions. Considering new challenges in the building industry, adjustments to the codes are necessary to guide civil engineers in their daily work life for the benefit of health, safety, and well-being of the community and the environment. The paper briefly presents the most recent research results to advance sustainability in construction. The authors evaluated recent publications and were informed by their research. Furthermore, they analyzed codes of ethics and professional conduct published by several engineering associations worldwide and herein discuss if these guidelines are able to support sustainable planning and building. The conclusion is that sustainability has become the central topic in planning and building, and it consequently affects the daily work life of civil engineers now and increasingly in the future. Consequently, nearly all engineering associations define sustainability as a value and principle that shall influence the decisions in engineering practice. However, most of the codes contain less detailed information for engineers about how to balance conflicting stakeholders’ interests and how to behave correctly to support sustainable planning and building.

Parties involved in architecture, engineering, and construction (AEC) have an interest in understanding litigation trends. The AEC community is eager to find ways to prevent or mitigate litigation. There are multiple ways to resolve such claims, with litigation being the longest and costliest route. The ruling decision factor (RDF) is the key element in a given case that a court takes into consideration in reaching the outcome/judgement. In this research exercise, RDF was represented by evidence, a specific law article, preceding court opinion, or contract. Sixty-two construction and engineering cases from Arizona, California, and New Mexico, dating from 2008 to 2021 in the Court of Appeals were evaluated. These cases were analyzed for interactions of the RDF with different, case-specific variables to capture trends and provide an understanding of what drove the case. For example, if the defendant type was a government agency, or the cause of action (a legal term referring to the main reason behind litigation initiation) was an environmental concern, the RDF was evidence. If the cause of action was a warranty issue, the RDF was a contract.

Construction disputes are among the most stressful events that may occur throughout the course of a project. Construction executives are increasingly seeking new means to avoid and resolve disputes. Artificial intelligence may be utilized to predict court judgments by uncovering hidden links between interconnected dispute factors, giving disputing parties a better insight on their case position and likely possible outcome. This paper investigates the change order disputes by creating a list of legal factors on which the court rulings were based for previously similar cases in order to determine the likelihood of a potential outcome for a future claim. Various machine-learning models are utilized and tested to determine the best conforming algorithm. These models are evaluated using confusion matrix based on their accuracy, precision, recall, and sensitivity. This study found that the random forest algorithm rendered the best overall performance and achieved (95.0%) prediction accuracy. The model developed in this research may be utilized as a practical means by disputing parties to evaluate and decide whether to file a claim or to settle it privately to resolve the disputes more efficiently for construction dispute negotiation purposes.

Abstract

The demolition project is associated with unavoidable environmental pollutants such as noise and dust emissions. These environmental pollutants undermine not only human health and the living environment but also cause conflicts with the neighborhood. Further, existing research indicates that no model or methodology has been developed to assess the pollutants on demolition sites. Therefore, this study attempts to provide a framework to monitor the real-time emission of noise and dust at demolition sites. Based on the literature study, the independent and influential factors affecting noise and dust emissions were identified. Subsequently, the real-time emission values were measured using real-time sensor data at the demolition project. The correlation and decision tree analysis revealed the independent factors’ interrelationship with noise and dust. Lastly, the results were validated with the existing policies and regulations on emissions. The results show that daily and hourly noise and dust emission values were significantly higher than the permissible limits. The outcomes reveal the key impact factors of environmental pollutants and draw stakeholders’ attention to managing the environmental pollutant emissions at the demolition site and reducing the ambient pollution levels that can impact the residents near demolition sites. It also helps the governing authorities in reforming the laws and regulations to control emissions.

Practical Applications

The demolition sector has recently seen a remarkable growth due to significant rise in redevelopment projects due to global urbanization trends. However, concerning to the safety, health of human and wellbeing, the demolition is considered as most hazardous work. Unlike construction projects, the demolition project also significantly affects the surrounding localities in terms of social, economic and environmental terms. However, these negative environmental impacts of demolition projects have not been studied adequately in the existing literature. The study revealed the most influencing factors affecting the emissions of environmental pollutants (EP) in demolition projects and proposes them as real-time monitoring indices. The proposed indices can assist stakeholders to have a clear picture and understanding of the various EP and their associated effects. The finding of the study can further assist in revising the existing policies and regulatory standards for effective management and control over EP. The findings also assist to ensure a safe workplace for the workers under the Chapter XII of BOCW Act, 1996 as well as maintaining a convenient environment for the surrounding localities under the GEMCDWM 2017.

Excusable delay clauses in government construction contracts, often considered boilerplate with minimal modifications, have increased in attention since the outbreak of COVID-19. Despite the studies enumerating triggering events of the clause in the background of the pandemic, it is necessary to capture insights into how the unprecedented event is systematically accommodated by contract languages. The overarching goal of this study is to identify changes in contract languages over the pre-and post-pandemic eras by state departments of transportation (DOTs), focusing on excusable delay clauses. This study conducts a content analysis and a comparative analysis of state DOT construction contract documents, including requests for proposals and agreements. Longitudinally, the study analyzes changes within a state DOT over the pre-and postpandemic eras. Cross-sectionally, the study compares the similarities and differences in the changes across different state DOTs. The results show that many DOTs specify a list of events that trigger the excusable delay clauses in the postpandemic era. The study also identifies example languages, such as quarantine restrictions and material escalations, that have been added in the postpandemic era. This study contributes to understanding how excusable delay contract languages have changed pre- and post-COVID-19 and the events that trigger such clauses in government construction projects. The findings are anticipated to benefit practitioners, especially those in the US transportation infrastructure industry and other common law authorities, by benchmarking necessary contract clause changes about the pandemic and unprecedented future events alike.

Residential real estate sector in India plays a pivotal role in supplying living accommodation to meet the ever-rising demand for housing. In the Indian context, the growth in housing supply has always lagged behind the demand. The present study examines the residential real estate sector to identify recurrent sources of claims hampering efficient delivery of housing assets. In mass urban housing supply by private real estate promoters/developers, 19 key factors reflective of the absence of time-bound, cost-certain and scope-adherent delivery of residential assets were identified. Following this, a questionnaire survey was undertaken to gain the viewpoints of relevant sector-specific stakeholders on the identified factors. Statistical analyses were subsequently conducted to arrive at key claim-causing factors bearing relevance to deficient housing delivery in India. Assessment of the viewpoints of a diverse set of real estate stakeholders pointed toward the presence of significant deterrents in the form of delays and cost-escalators, leading to unavoidable claims and litigation between residential real estate promoters/developers and consumers. The findings indicate the pressing need to optimize residential real estate asset delivery in India through the addressing of recurrent claims with respect to delays and cost-escalation.

The construction industry underwent significant transformation due to the profound effects of COVID-19 pandemic. Its impacts included disrupting supply chains, leading to labor shortages, and introducing new safety protocols. These factors led to delays and cost overruns for many construction projects, with significant financial implications for organizations and stakeholders. While numerous studies have delved into these factors, further research might be beneficial to specifically analyze them in the context of the construction sector, the organizations involved, or the scale or type of projects. To fill the research gap, we undertook a four-step approach: beginning with a literature search to establish the existing knowledge base, progressing to data collection via online surveys, followed by data analysis, and culminating in drawing comprehensive conclusions based on our findings. The results showed that the pandemic’s impact on the construction industry was widespread, affecting a variety of sectors, organizations, and projects, but that the heavy construction sector and large-scale companies along with small- and medium-sized companies were disproportionately affected. This study provides insight into the enhanced risk of cost overruns during pandemics or similar types of events and highlights the need for increased emphasis on employing effective risk management strategies to ensure project success.

Construction projects often require frequent schedule updates to accurately represent construction progress, identify potential delays, prepare progress payment applications, and utilize updated schedules as admissible evidence in instances of disputes. However, it has been observed that project managers and schedule consultants frequently concentrate solely on modifying the logic and duration of the schedule, neglecting to thoroughly investigate out-of-sequence activities, scrutinize performance data, collaborate with subcontractors, and adjust the schedule to reflect realistic and achievable objectives. Consequently, schedule updates are frequently perceived as liabilities rather than opportunities for enhancement. This study endeavors to address this prevalent issue through the following objectives: (1) assessing the underlying causes contributing to the inadequacy of schedule updates in construction projects, (2) examining the primary factors that obstruct the implementation of a realistic schedule update when necessitated, and (3) comprehending the influence of out-of-sequence activities on the actual progress of construction. A quantitative research methodology is utilized by administering a detailed questionnaire survey aimed at project managers and professional schedulers. The findings revealed that the primary reason for a project schedule not being updated was due to the person responsible making excuses. Similarly, poor communication was identified as the primary factor hindering realistic schedule updates. Additionally, the results suggested that out-of-sequence activities increased project cost and time, while decreasing project productivity. Finally, the findings of this comprehensive investigation are employed to propose recommendations for optimal practices in the realm of construction scheduling updates, with the aim of fostering enhanced efficiency and efficacy within the industry.

The input of experts is invariably viewed as fundamental to the course and outcomes of dispute resolution proceedings. However, such input may expose the involved experts to liability risks. To this end, some experts assume that liability protection is guaranteed by a blanket of witness immunity, an assumption that is unfortunately not always valid. The purpose behind this paper is to investigate the present immunity boundaries for such witnesses, in particular connection with possible negligence in their performance. The adopted methodology involved examining several legal cases involving the negligence of experts, in addition to reviewing the relevant literature. The performed analyses allowed to directly, or analogically, identify the negligence-related immunity levels, and their underlying reasons, for the various expert roles that may be involved in construction dispute resolution processes. The findings revealed two groups of experts for whom negligence-related immunity prevails. The first group includes expert witnesses appointed by courts, tribunals, or adjudication boards, as well as assessors appointed by courts or tribunals, whose immunity stems from the quasi-judicial roles they provide under such assignments. The second group involves only the adverse expert witness whose immunity originates due to no duty being owed to the claiming party. The professionals found to be lacking immunity coverage include friendly experts, jointly-appointed experts, expert advisers, and friendly hot-tubbing expert witnesses. The work outcomes offer insights to construction professionals accepting to deliver expert witness testimonies for construction dispute resolution purposes.

Abstract

Voluntary participation has been treated as a prerequisite for the use of mediation. It is believed that when disputing parties mediate at their own will, they will be more likely to undertake a bona fide negotiation whereby the prospect of reaching a settlement is enhanced. Thus, voluntary participation has been recognized as an indispensable design feature of mediation. For construction dispute resolution, the use of mediation has been promoted through stipulating its use in most dispute resolution clauses in standard forms of construction contracts. As such, the attempt of mediation is the condition precedent before a construction dispute can be referred to other adjudicatory forms of resolution such as arbitration. Similar arrangements have also been affected for cases reaching the construction court in Hong Kong. Effectively, the use of construction mediation is quasi-imposed. Moreover, it is noted that contracting parties are not on equal footing. The power asymmetry between them can arise due to their differentials in resources, information, and expectation. This study raised two incompatible conditions that may negate the utility of voluntary construction dispute mediation: quasi-imposition and power asymmetry. Through the study of eleven mediation cases, the projected negative impact of quasi-imposition and power asymmetry on voluntary participation was found to be insignificant. The flexible approach of mediation is found to be the most critical advantage in attracting potential users. There is no serious concern about quasi-imposition as long as the flexibility in managing the mediation proceeding is maintained. For asymmetric conditions, it is suggested that the expectations of parties deserve special attention. In this regard, mediators’ skills and expert knowledge would prove instrumental in narrowing the expectation gap.

Practical Applications

The use of mediation before arbitration is now the mainstream design of construction dispute resolution clause in construction contracts. Voluntary participation underpins the use of mediation to resolve construction disputes. This study revisits the voluntary participation design in view of two potential incompatible conditions against its use: quasi-imposition and power asymmetry. Quasi-imposition entails stipulating mediation in the contract or encouraging it through court directives. While not mandatory, it becomes necessary if arbitration/litigation is considered. This runs against the spirit of voluntary participation. The second incompatible condition concerns the power asymmetry between parties, which can hinder mediation due to disparities in resource, information, and expectation. Through insights from experienced mediators and observations from real cases, it is concluded that both incompatible conditions can be counteracted by the flexible procedures of mediation. Voluntary participation signifies that disputing parties can discontinue mediation at any time they want. The mediators also opined that quasi-imposition is useful to encourage attempt of mediation. Power asymmetry does exist yet poses no major barrier because the parties are free to decide how the mediation is to be conducted. The findings of the study affirm the practical value of voluntary participation in construction dispute mediation.

Uncertainty in the homologation of drone legislation for nations has resulted from the argument over whether to control developing technology. In the field of unmanned aerial systems (UAS) there is a lack of clarity in stablishing the policies. The intricacies involved in assessing risk probabilities, such as weight, altitude, commercial purpose, involvement of personnel, and other relevant variables, prompt countries to establish legislative frameworks for their UAS policies. This is driven by the recognition that homogeneity in certain application forms of UAS is achieved or discovered at varying rates. Therefore, the aim of this paper is to provide a comprehensive understanding of the ontologies that regulate UAS by utilizing standard operational cases or ideal application scenarios. Practices that fall outside of these established frameworks should be subject to ethical evaluation for regulation in the field of construction. A longitudinal study was used to observe the policy changes, evolution of the technology, applications, and trends. In addition, 28 interviews and 30 surveys were conducted involving policy makers, practitioners, service providers, and academics in the Dominican Republic to identify their position in the adequate process of adopting UAS. The findings indicate that policy implications involve various aspects, including building information modeling (BIM), aviation safety, technical inspection manuals, and the urban design of cities. These policies govern the types and capabilities of UAS adopted by construction companies.

This study investigates the impact of the COVID-19 pandemic on the public-private partnership (PPP) infrastructure market, focusing on Colombia’s fourth generation roads concession program (4G) and analyzing 29 toll road PPP initiatives. Using content analysis (CA), natural language processing (NLP), and social network analysis (SNA), the study provides empirical evidence on how PPP renegotiations triggered by the pandemic have been conducted and how contracting parties have responded to such renegotiation efforts. Results show that, from a total of 13 renegotiation processes, most projects relied on two joint general agreements focused on addressing temporary suspension of construction works, mandatory preventive isolations (quarantines), and halting toll collection. However, there were important differences in terms of how PPP parties employed multiple contractual mechanisms to counteract COVID-19 effects according to conditions associated with project complexity, project stage, procurement strategy, and procedures triggering renegotiations. Overall, this research offers an understanding of the dynamics associated with COVID-related renegotiations within PPP projects, which can inform contract and renegotiation strategies and improve future infrastructure projects, particularly in the face of unexpected events.

Abstract

The paper proposes useful indicators and tools to improve the civic monitoring of public procurement implemented through digital procedures in the construction sector. Despite the construction industry is a key pillar of the global economy, the protection and integrity of public procurement are often exposed to various challenges. To revolutionize the monitoring of public procurement, national and transnational regulations have been issued to supervise the adoption of digital technologies and tools to ensure operations transparency and continuous monitoring of the progress. The presented definition of useful indicators to promote civic monitoring is based on a replicable methodology that starts from the analysis of the state of the art and best practices in the European and Italian context, including the last provisions about digitalization in public procurement. The indicators were created through multiple revisions in agreement with civic monitoring experts to ensure transparency and data continuous accessibility by common citizens. Although the presented indicators are still theoretical, were designed to reduce long execution times and public funding waste, in addition to ensure greater compliance with expected project performance and quality. The indicators will be validated through future pilot case studies and included in the civic monitoring purposes of the Italian National Recovery and Resilience Plan projects. The outcomes of the validation will support the definition of a civic monitoring approach that could be replicated in other international contexts.

Practical Applications

The paper presents a set of indicators exploitable by non-experts for civic monitoring of public procurement. It focuses on the construction sector, a key pillar of the global economy, which is most affected by several critical issues such as corruption. The monitoring of public procurement is key to ensure the efficient use of public resources and is facilitated by the digitalization of information and procurement procedures, which enable or make it easier for citizens to access, consult, and process data on public procurement. Thus, the indicators were identified with particular attention to digitalizing procedures in all stages of public procurement, aiming at guaranteeing data transparency and accessibility, as well as the shared management and traceability of information. They have been identified in the Italian context, but can be replicated in other ones, including international ones, with critical issues requiring indicators to monitor the correct, efficient, and transparent execution of public procurements. They will be used to monitor projects funded by the Italian National Recovery and Resilience Plan (adopted in 2021 as part of the Next Generation EU).

Uncertainties surrounding price adjustments, delays in index selection, and ambiguous escalation clauses compound the complexities of the construction environment between an owner and a contractor. This study investigated disputes and price adjustments within Nepal’s construction industry. Utilizing a mixed-methods approach, the qualitative analysis uncovered obstacles from index selection delays and contract management inadequacies related to price adjustments, and the quantitative analysis emphasized key project milestones and notable discrepancies between claimed and certified amounts. The research underscored the tribunal’s recommendation for an average adjustment approach, advocating for transparent communication and adherence to contract terms to facilitate fair dispute resolution. The study was motivated by the need to address the intricacies of the absence of specific price indices in construction projects, especially in the context of significant delays. It revealed the errors made by both parties in formulating and agreeing upon price adjustment clauses. The research assessed conflicts related to price adjustment, highlighting its significance in construction contracts and examining the impacts of incorporating accurate price indices on projects. The study also emphasized the implications of inadequate contract management expertise in resolving price adjustment disputes. The findings underscored the necessity for transparent methods and coherent contractual provisions. The tribunal’s endorsement of the average adjustment approach presented a balanced solution, mitigating index disparities and fostering equity. This approach underscored the importance of clear communication, consensus building, and steadfast adherence to contract terms. Ultimately, this research provided a nuanced exploration of dispute resolution dynamics, price adjustments, and the efficacy of alternative dispute resolution (ADR) methods within Nepal’s construction context. The findings and lessons learned presented in this paper could benefit owners, contractors, and other stakeholders by reducing the potential disputes related to price adjustment in the construction industry.