Journal of Legal Affairs and Dispute Resolution in Engineering and Construction

Engineering costs account for a significant portion of the total project cost in construction projects, and the output of engineering work directly affect both the construction and operation of the permanent work. An important factor affecting engineering costs is engineering productivity. Since the engineering output is not as tangible as the constructed product, it is challenging to properly measure engineering productivity, which makes contemporaneous productivity loss tracking even more difficult. Under a design-build contract, the contractor is responsible for both the design and construction of a project. If the contractor’s engineering work is disrupted by events for which the owner/employer is responsible, the contractor can recover the lost engineering productivity based on the establishment of entitlement, causation, and credible quantification. This paper discusses issues related to recovering lost engineering productivity. In particular, this paper discusses various methods applicable to the quantification of engineering productivity loss under design-build contracts.

Rail infrastructure projects are complex and capital intensive and involve an array of stakeholders. As a result, proper risk management in these projects is crucial for their successful completion. In developing countries such as India, most rail projects experience delays and cost overruns. The present study was conducted in the Indian construction industry to identify the risk factors associated with dedicated freight corridor and mass rapid-transit metro rail construction projects. A total of 31 risk attributes were identified through a literature review. Subsequently, a questionnaire survey was conducted, and responses of 80 experts were collected. The responses were then analyzed using descriptive statistics (relative importance index and analysis of variance) and factor analysis. In total, eight critical risks factors were established from the identified attributes: lack of skill and competency, lack of project resources, political interventions and disputes, poor subcontractor management, poor-quality bid document, scope creep, contractual issues, and client delays. The research findings are expected to help stakeholders understand the critical risks involved in railway construction projects and would allow them to manage their existing resources more strategically.

Buildings are the single largest user of energy in the US and can account for 50%–75% of carbon emissions in large cities. Adopting effective regulations for encouraging more energy-efficient buildings is therefore paramount. Besides the voluntary programs, the regulatory bodies (e.g. municipalities) have different mandatory programs to motivate energy efficiency in new and existing buildings. While building energy codes and auditing are traditional law instruments, an increasing number of cities across the US have adopted building energy benchmarking laws in recent years. This study evaluates the building energy regulations and laws in seven US cities. In particular, it focuses on three major aspects of the building energy laws for each city: (1) scope and compliance, (2) implementation and enforcement, and (3) contribution to the emission reduction. The results show that although energy codes are necessary to establish minimum requirements for new buildings, adopting mandatory benchmarking and transparency laws can significantly reduce energy use. The study concludes with a comparison of adopted energy laws in selected cities and discusses the factors affecting the successful adoption of benchmarking policies such as compliance rate and training of building owners. The results of this study can raise the awareness of policymakers for implementing more effective building energy regulations.

The differing site conditions (DSC) clause, commonly known as changed conditions, is one of the most frequently litigated clauses in construction contracts. It is well established that the purpose of a DSC clause is to shift the risk of unknown physical conditions to the owner and reduce the construction cost. Parties to DSC disputes not understanding what must be substantiated in a case can lead to a plethora of costly and time-consuming proceedings. Additionally, the misinterpretation of the roles of soil reports, disclaimers, and site visit requirements ultimately produce the same result. The study will provide a guideline of the essentials required to win a DSC claim and a clarification of the misconceptions associated with the role of the contract documents, as well as an analysis of the judicial history of DSC cases. The findings will promote a more thorough understanding of the matters involved in DSC claim litigation. As a result, they will lead to improved contract administration and reduce prolonged and costly litigation for construction projects.

Arbitration has been the alternative dispute resolution to litigation in many contractual agreements and among many construction projects. It was promoted as a better alternative dispute resolution method to the litigation process due to the presumed decrease in both time and expense. However, over the last decades, arbitration proceedings have become longer, more expensive, and almost comparable to litigation. Despite having many other alternative dispute resolution methods, arbitration is still the most prevalent method in many contractual agreements. Therefore, arbitration cost and time overrun issues have to be addressed in order to understand the reasons behind the cost overruns and to allow the discovery of different opportunities to mitigate arbitration costs while maintaining the arbitration process efficiency. This research study identifies the root causes for arbitration cost overruns and analyzes the different scenarios that lead to these overruns. The study also analyzes the different control and mitigation strategies that can be utilized to better control arbitration costs.

Contracts between the government and private entities happen on a daily basis. Administrative contracts are entered into by the selection of the private partner by the public body by means mentioned in law such as tenders and direct negotiation. These contracts are subject to the country’s national public procurement law. The term public procurement law relates to the legal provisions and arrangements that control the government’s public institutions and agencies’ procurement of works, services, and goods. These include, among others, ministries, public institutions, municipalities, and city councils. On October 3, 2018, a new Egyptian public procurement law, Law No. 182 of 2018, was issued to regulate contracts concluded by public bodies. The executive regulations of the law were issued on October 31, 2019. This paper presents the proposed amendments to the law in line with the relevant laws in many countries of the world to make it more equitable and to avoid unbalanced provisions that make international contractors and investors refrain from dealing with major projects in Egypt. The suggested amendments address contract termination, price adjustment, delay claims by the contractor, limit of compensation under performance guarantee, and arbitration.

There are a myriad of approaches applying different techniques in the mediation of construction disputes. Different mediators may have developed their own styles of practice. Among others, evaluative and facilitative mediation or a combination are the approaches mediators commonly apply in the mediation of construction cases in Hong Kong. It is common to see advocates of facilitative mediation or evaluative mediation in the Hong Kong construction industry. But given the distinct nature of the two approaches, there are relatively few advocates who will use a mix-and-match approach. However, during interviews with experienced mediators in the construction field, some mediators are in actual practice trying to merge two of the approaches. One example is that some of the mediators are willing to explain or give views on the disputing matters from a technical angle, although facilitative mediation is adopted as the main approach. However, this requires the mediator’s extensive knowledge of the disputing issues. A confluence of the two approaches in a single mediation case is an emerging topic among mediators in construction cases. How a cocktail of the two approaches in mediation could enhance the effectiveness and cost of mediation remains to be explored. During interviews with experienced mediators and disputing parties’ representatives, under what circumstances and how mediators in the Hong Kong construction industry perceive the role of the two approaches of mediation in mediating construction cases and how they apply evaluative mediation technique as a necessary supplement to facilitative mediation, or vice versa, are the topics explained in this paper. Recommendations are made to readers after the analysis.

Regulatory compliance is a set of formal requirements, and lack of clarity on regulations can lead to significant legal and ethical consequences pertaining to collection, storage, or sharing of data among organizations. It can create ambiguity, or regulatory gaps around external benchmark frameworks employed to measure and compare performance among participating organizations. The purpose of this study is to review current US laws and regulations and governing case law concerning data governance, and to aid examination of the framework of federal antitrust and Safe Harbor rules around benchmarking and data warehousing. This study explores gaps between academic research and formal requirements for data governance and benchmarking in the federal space. A systematic review of the literature, federal laws, agency regulations, and relevant case law was conducted to further organize the relevance of the literature in the academic, federal, and legal domains. A quantitative approach was adopted wherein academic scores of relevance (SoR), a legislative score of relevance (LoR), and an overall ranked score of relevance (RoR) were calculated. Guidance on business implications around data governance frameworks is provided to academic and industry professionals engaged in data sharing and analytics.

Over the decades, the construction industry has been experiencing disputes in different project contexts. For example, disputes are more prevalent in traditionally procured projects and in projects with a complex nature of design. Further, certain large-scale government projects have had disputes due to budget and payment issues. Disputes adversely affect the project budget, the schedule, and the quality, thereby affecting the project performance at large. Therefore, this study examines the causes of disputes from the perspective of project characteristics. Following a review of causes of disputes, a total of 44 building projects were surveyed, and the required data were collected by referring to relevant project documents and through semistructured interviewes among project participants. The results revealed that payment delays, ambiguities in documents, and scope changes are a few of the critical causes that can be attributed to the type of client, cost and size of projects, degree of design complexity, procurement method, and source of funding. Therefore, this study recommends that, as a matter of importance, the potential causes of disputes should be addressed as per the project contexts at an early stage in order to avoid the disputes, and to mitigate the resultant effects in the construction industry.

Building information modeling (BIM) can potentially enhance project visibility, improve productivity, and promote shared understanding among various construction project stakeholders. The benefits of BIM implementation in a construction project may remain a distant dream if there is no structured way to select a BIM-capable contractor. Existing studies have focused on identifying BIM prequalification (PQ) criteria in countries where BIM implementation is advanced. Therefore, considering the early stages of BIM adoption in many developing countries, this study identified the mandatory and desirable BIM-specific PQ criteria to be included in the short, medium, and long term, considering the perspectives of clients, contractors, consultants, and academicians in the context of engineering, procurement, and construction—turnkey (EPC–Turnkey) projects. Objectives were achieved by identifying the relevant BIM-specific PQ criteria through content analysis of the literature and interviews with experts predominantly from countries where BIM implementation is nascent. Following the literature review and interviews, a questionnaire survey of globally spread stakeholders assessed their extent of agreement or disagreement on including a criterion as a BIM-specific PQ criterion. The results showed that, while all the identified BIM-specific PQ criteria were rated on the agreement side, most respondents preferred including the criteria as desirable rather than mandatory, with their inclusion in the short and medium term (less than five years). In terms of stakeholder perspectives, there was no significant difference between the agreement levels of stakeholder groups. However, considering the overall responses, realizing the need to provide time for holistic BIM diffusion, the practitioners preferred a middle path to include the BIM-specific PQ criteria as desirable rather than mandatory within a timeline of the next five years. The study results can help project stakeholders assess bidders’ BIM implementation capability by considering the conflicting dual needs of BIM implementation urgency and the varying extents of BIM percolation among contractor organizations.

The ineffectiveness of dispute resolution remains a major concern to many users of construction arbitration. Despite several complaints regarding high costs, delays, and rejected awards, there is no evidence that any studies have systematically investigated and explained the ineffectiveness of construction arbitration. This multiple qualitative case study aimed at addressing this research gap. Rich qualitative data based on 13 semistructured interviews and documentary analysis in five exemplifying cases indicated that all five cases were ineffective because of poor-quality awards, time inefficiencies, and cost ineffectiveness. Such ineffectiveness was attributed to unfavorable outcomes, which were perceived to be unfair in cases in which tribunals did not exercise their powers in balancing process control that was skewed in favor of the winning parties. The findings also pointed toward mismatches between case complexity and the competence of the tribunals, whose limited functional skills restricted their ability to properly guide the disputants on efficient approaches to the presentation of evidence. These findings provide a nuanced understanding of how these factors collectively interact in explaining the ineffectiveness of construction arbitration.

The Housing Grants, Construction and Regeneration Act 1996 seeks to improve productivity of the UK construction industry by imposing on qualifying construction industry contracts a transparent payment protocol and a right to contractual parties to refer disputes for resolution by adjudication. A qualifying construction contract is defined to exclude certain types of construction industry contracts from the ambit of the legislation. These exclusions have been the subject of extensive and costly litigation concerning the demarcation between contracts types within, as against those outside, the legislation. Using legal research methods, this paper critically analyzes the issues in the litigation to extract implications for adjudication practice and policy review. As a reflection of the global nature of payment challenges and disputes on construction projects, the UK legislative intervention is being emulated in many countries. The UK experience therefore offers lessons on how the demarcation problem may be approached in other jurisdictions.

Change orders continue to be one of the main challenges faced by the construction industry. Despite many previous research efforts related to managing change orders in the construction industry, there is still a lack of research that investigates the contractual aspects of change orders for transportation projects. This paper tackles this knowledge gap within the context of Ohio Department of Transportation (ODOT) highway projects. To this end, the authors used an integrated research method comprised of (1) selection and analysis of ODOT case studies; (2) identification of the main change orders aspects that lead to conflicts, claims, and/or disputes in the considered case studies; and (3) analysis of the contractual provisions and procedures related to change orders on ODOT projects. The authors consulted throughout all the research steps with ODOT experts for verification and validation. Through the analysis of 10 ODOT case studies, results show that the major contractual challenges related to change orders on ODOT projects are caused by definition terms and their associated processes, approvals according to the contractual provisions, and approvals in light of the applicable laws. Accordingly, this paper identifies (1) a list of opportunities and risks, and (2) a series of checklist questions. These research outcomes shall help project parties in identifying the contract terms that can lead to improper handling of change orders, and thus facilitate better managing of change orders on ODOT projects. Ultimately, this research adds to the body of knowledge by providing contractual guidelines to facilitate a better administration of the contractual procedures of change orders for a timely and cost-effective execution of highway transportation projects.

Informal urban sprawl and building violations, including height increase and changing building use, have led to agricultural land loss and pressure on infrastructure in the Nile Delta region. Accordingly, the reconciliation law implemented by the Egyptian government is considered a step toward preventing building violations and legalizing the status of previous breaches. Hence, this research aims to assess the impact of the different procedures of the reconciliation law on the number of reconciliations and investigate the citizens’ perceptions about reconciliation law. The impact of different procedures of the reconciliation law on the number of reconciliations has been analyzed. Also, more than 600 violation cases have been examined and interview conducted to investigate the citizens’ perceptions of reconciliation law using the convenience sampling technique. The results show that the most effective actions were the threat of removal and reducing reconciliation fees. Also, the main reason that impeded the citizens’ from reconciling was the slowness and lack of procedural clarity. Improving awareness, transformation to digital procedures, and deterrence of violations are crucial recommendations. This study may be of benefit to similar urban contexts in developing or underdeveloped countries.

Matson Navigation Company had been shipping molasses from Maui to Honolulu Harbor for 30 years, once a week, when in September 2013, 1,400 t of molasses spilled into Honolulu Harbor by way of a corroded pipe. This spill was not discovered until September 9, and resulted in the death of all marine life in the area due to deoxygenation, as discovered by divers. At the time, molasses was unregulated and therefore spill response plans were not required. The following year, Matson pleaded guilty in a federal court to violating 33 United States Code 407, the Rivers and Harbors Appropriation Act of 1899. Then, 2 years later, in July 2015, Matson paid the State of Hawai‘i a $15.4 million settlement in the forms of cash, restoration, and funding of environmental programs. In 2017, the EPA charged Matson with a civil settlement, marking the end of all criminal and civil cases against Matson. As a result of this incident, Hawai‘i DOT (HDOT) requires all businesses using port pipelines to provide documentation of pipeline inspections and spill response plans to prevent future environmental and economic disasters. This paper summarizes events associated with the spill and discusses the statute used to prosecute Matson, the spill’s impact, and the handling of the spill response. Using primary and secondary sources from library and online searches, the authors identify breakdowns in protocol and conclude that the spill could have been prevented if Matson and Hawai‘i Department of Transportation had communicated more effectively.