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.

Unbalanced pricing is a common strategy adopted by contractors who participate in competitive bidding for construction contracts. This strategy exposes owners to several risks, and therefore bidding regulations of a number of contracting authorities include provisions that address this practice. Such provisions vary and range from restraining excessive utilization of unbalanced pricing up to the rejection of unbalanced bid offers as irregular and nonresponsive bids. This paper presents an analysis of the bidding regulations of state DOTs that address the unbalanced pricing of competitive bids in order to evaluate the adequacy of the current provisions in protecting the owner’s interests. The paper includes the standpoints of these regulations toward unbalanced pricing and their adopted procedures and guidelines to detect and combat this practice. The paper presents an evaluation of the effectiveness of specific measures used by some state DOTs against unbalanced pricing. The evaluation indicates that available measures are somehow effective in handling overpricing early items in the contract performance, while they are less effective in handling the greater risks associated with pricing manipulations that exploit errors in estimated quantities of line items. The paper concludes with proposed rules that can be used by owners to handle unbalanced pricing more effectively, and can help in promoting fair competition among contractors.

The issues of protecting the rights of workers have traditionally been of significant importance in modern labor relations; however, during the spread of COVID-19, they acquired a particular specificity. The lack of a safe work environment exposes workers to the virus, and lack of access to the necessary tools and equipment makes it difficult for employees to perform their assigned tasks. For many industries that do not have the possibility of remote work, in particular construction and the manufacturing sector, the need to adapt to the new reality while respecting labor rights has raised a lot of questions. However, it is the health workers who are at the forefront of the pandemic that are at increased risk. Despite the fundamental importance of respecting the rights of medical personnel during a pandemic, there exists much evidence that states do not guarantee the observance of such rights, and sometimes even contribute to their deliberate violation. Thus, this study is devoted to the issue of violations of health workers’ labor rights during a pandemic. At the same time, the goal was set to systematize medical workers’ rights that are violated during a pandemic. The theoretical and practical value of such a study is manifested in the universalization of opportunities for preventing or eliminating negative consequences from such a violation of rights. The study traced the spread of COVID-19, as well as the measures taken by various states to counter it, which, as a result, made it possible to actualize the importance of the role of medical workers during the pandemic caused by COVID-19. Using the method of system analysis as well as the method of political and legal analysis, a study of international legal acts in the field of regulation of the protection of labor rights was carried out from the point of view of their applicability to the protection of labor rights of medical workers. The study considers the examples of developed and developing countries. Based on the analysis of existing examples of violations of the rights of health workers in the countries under consideration, the study determines the violated rights from the point of view of international law. Research carried out a generalization of cases of illegal attitudes of the states (considered in the study) toward health workers, which made it possible to name the most frequently violated labor rights of health workers during a pandemic. Based on the analysis carried out, the study classifies all identified violated labor rights of medical personnel during a pandemic with appropriate justification for such a classification.

Major public infrastructure projects have used innovative project delivery, such as design–build (DB) and public–private partnership (P3). As an essential part of a quality assurance program (QAP) for large projects, some state departments of transportation (DOTs) require the use of a new quality management model, the developer’s construction quality acceptance firm (CQAF), also known as an independent quality firm (IQF). It is crucial for the construction engineering and inspection (CEI) industry to understand this novel quality assurance program. The overarching objective of this study is to identify inconsistencies between CEI understanding and DOT expectations for quality assurance roles and responsibilities. The study collects insights from five professional groups: general contractors, design consultants, CEI specialists, DOT staff, and owner’s representatives. The combination of surveys and interviews facilitates a rich understanding of the CQAF model. This paper will benefit the industry through minimizing gaps between the DOT’s expectations and industry’s understanding of how CQAF should function. It is also anticipated that this paper will offer constructive guidance on strengthening the QAP in the design–build transportation project delivery.

Cost engineering aims to obtain reliable cost and schedule estimates. However, many public works demand additional costs that are considerably higher than the initial cost estimates. In Brazil, this can be partially explained by how the government hires public works services. Because of the high frequency of this problem and the associated damage, the aspects that impact overpricing should be better understood, including fraudulent acts. This paper presents a case study to demonstrate how cost engineering can be used to identify frauds in Brazilian public works. The research method was based on a quantitative approach to describe the estimated overbilling through bibliographic and documentary analysis of forensics engineering expert reports. Data from public works contracts were obtained for a 4-year period, which resulted in an average percentage of overbilling. This index enabled identifying fraudulent evidence in Brazilian public works that match a period of highly corrupt practices in the country.

This research aims to detect the reasons for, challenges to, and methods of settling disputes from private housing construction contracts in the Palestinian Territories (the West Bank) and their consequences in the construction market. Literature on the subject was reviewed, then free discussions were conducted with a focus group of 39 local community representatives (LCRs) in the West Bank (judges, lawyers, and representatives from Palestinian Contractors Union, Engineers Syndicate, municipalities, and governors) to explore the challenges, dispute reasons, and regulatory frames for residential construction agreements in the West Bank. The discussions were followed by a questionnaire sent to 79 landlords and 32 residential contractors. An in-depth statistical analysis was then conducted using the collected data. It was found that a legislative gap in regulating private housing construction agreements has led to the jurisdiction of customary law that preserves the interests of residential contractors to the detriment of landlords. The inequality of bargaining power between the contracting parties, the poor management of agreements, and the lack of engineering supervision in most of these relationships represent significant challenges in the practical conditions of these contractual relationships. This research pursues the reasons for disputes in private housing construction agreements, the lack of a regulatory framework for construction contracts, poor management of agreements, and the absence of engineering supervision.

In many construction projects, standard forms of contract are an essential part of the contractual documents. They are preferred by construction parties for the advantages they present including reducing drafting time and costs. The International Federation of Consulting Engineers (FIDIC) and the New Engineering Contract (NEC) forms prepared by the London Institution of Civil Engineers are among the most popular standard construction contracts. In comparison with the other FIDIC contracts, the Conditions of Contract for Construction (the Red Book) is most used, and within the NEC forms, the Engineering and Construction Contract (ECC) is the most frequently used form. Both the Red Book and the ECC have their roots in common law jurisdictions. However, the former contract is widespread in civil law countries, whereas the latter is not. Several possible reasons for this difference can be studied. This paper is devoted to investigating whether the provisions of the ECC are less compatible than the provisions of the Red Book with the relevant mandatory statutory provisions and judicial jurisprudence of the United Arab Emirates, the civil code of which shares many similarities with the respective codes of other civil law countries. The investigation is instituted on the doctrinal research method and the results, which are documented in this paper, show that the ECC does not contain more contradictions than the Red Book with the aforementioned mandatory statutory provisions and judicial jurisprudence. Accordingly, it would appear that such contradictions do not explain why the ECC is not prevalent in civil law countries.