Published: 12-Dec- 2010 | Comments: 0
Avoiding disputes and litigation in the course of a significant construction project is a sensible goal, given the costs in terms of both money and time. But sometimes it cannot be avoided. The reality is that there are many competing interests with a stake in the construction of a new capital project — from the public and owners to lenders, contractors, and architects. The backdrop for all these players is an increasingly complex regulatory environment with new laws proliferating and the number of lawsuits skyrocketing.
Even a perfectly cooperative effort, made in good faith on behalf of all parties, can be thrown into chaos by such classic construction obstacles as bad weather, problems procuring materials, on-site accidents, or other events. Your organization must be prepared to defend its interests and coherently present its point of view to attorneys, a professional mediator, a judge, and even the media. It only makes sense to formulate a strategy to manage construction litigation risk so that when a dispute does arise, your chances of coming out on top — and collecting — are improved.
A company can improve its chances of obtaining a favorable settlement, acceptable compromise through mediation, or a jury win by considering the following questions throughout a construction project:
- Have the appropriate legislators, city council members, zoning boards, and community boards been made aware of and given their approval for the project?
- Have we documented every phase of the project from our vantage point?
- Did we arrive at a projected overall budget and a schedule for paying the contractors?
- Is there an easily understandable way of quantifying the impact of delays on our business?
- Do subordinates understand the specifications of the project?
- Does the team frequently compare the original plans with the actual performance to date?
- Do we understand the liquidated-damages clause of my contract?
- Have we included audit rights in the contract to control costs?
- Have we left profit and overhead undefined on change orders?
- How are pre-construction costs being segregated from project costs?
- Are general-conditions costs fully defined?
- Have we selected the most appropriate contract type (cost plus, GMP, etc)?
- Does our team understand all the provisions — especially the scheduling provisions — in the contract?
- Are any mid-stream changes in the project specifications reflected in the contract?
- Do we have enough insurance to cover all phases of the construction project?
- Has the contracting company been an on-site presence or has it let the subcontractors manage themselves?
- Is the project using appropriate scheduling and accounting software?
- Are we fairly paying our contractor for the work performed to date?
- Have we brought any problems to the attention of the contractor?
Marsh's Construction Consulting practice has the experience necessary to analyze large-scale construction projects and help our clients triumph in complicated disputes. Using a phased investigative process, we unearth the facts about what exactly went wrong and how things veered off course, compare this performance against the original construction plans and contract specifications, and assist in assigning liability to the appropriate party.
Schedule and Issue Analysis
In our experience, due to the number of different players involved in a construction project and the pinpoint timing that is needed to make sure that each of their tasks is completed in the right order, we have found that many disputes are rooted in scheduling problems. Our scheduling analysis service is used to evaluate the planned sequence of construction, determine the actual sequence of construction, identify the critical issues and their impact, and assist in assigning responsibility for the delay as well as in capturing and quantifying the costs of the delay.
Estimating the total damages stemming from a construction dispute, including loss of profit, economic loss, lost efficiency, labor and materials escalation, extra work, and extended job and home office overhead, is an important part of our service. Most of our clients are not in the construction business, yet face adversaries who know their small part of the construction industry very well. Since our consultants have assisted clients in similar situations many times, we know the full financial impact of delays, shoddy workmanship, and new buildings not compliant with local codes — and know how to present these monetary damages in a way that makes sense to the layperson.
Alternative Dispute Resolution
An amicable settlement is always preferable to protracted litigation. In fact, construction litigation is getting so prevalent these days that the courts are strongly encouraging parties to take the route of professional mediation. Marsh helps clients to navigate the negotiated settlement process at any time during the project, and our consultants have experience helping construction clients use various dispute-resolution forums, such as mediation and arbitration.
In the unlikely event that a construction dispute goes to trial, our construction practice consultants can help in many different ways: from serving as expert witnesses on the schedule and cost impacts, to assisting with document discovery, and providing the legal team with the technical understanding necessary to effectively present the case, Marsh supports clients throughout the litigation process.
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