Trends in Construction Claims & Disputes:
The Best Offense is a Good Defense – Or Vice Versa?
 

Presented by:
James G. Zack, Executive Director

and
Stephen Pitaniello, Managing Director
Navigant Consulting, Inc.

During the recession, the number of projects and construction companies declined, yet the number of claims rose. This is not unusual as contractors need to increase revenue every chance they get. Sometimes, it is merely pursuing legitimate changes that previously would have been ignored in the name of goodwill, and at other times, it stems from necessity, taking an aggressive stance concerning possible claims.

"Claimsmanship" has proliferated and is now equally practiced by owners, contractors and their representatives. From this growth several trends have developed, including:

• Declining construction dispute values accompanied by increasing durations
  
• Court and Board of Contract Appeal decisions limiting damage recovery
  
• Increased use of False Claim allegations in response to contractor claims
  
• Contractors are trying to create new forms of claims

These trends are exacerbated by what the construction bar calls the "vanishing trial." Between 1938 and 2009 civil cases going to trial have decreased by over 90%, and the decline is accelerating. U.S. "construction law" is derived primarily from case law (previous court decisions). As the construction industry changes and evolves (i.e., new project delivery methods, BIM, green construction, location-based scheduling, etc.) so too, must construction law. The consequence of the vanishing trial is that construction law stops evolving and judges are less experienced with construction law and issues.

This presentation explores these growing trends and, for both contractors and owners, how to mitigate or avoid their negative impacts on construction claims and disputes. While these claim defenses are important for owners to understand in order to reduce overruns, contractors need to understand which claims have the best chance to navigate these new defensive barriers and how to approach them. The presentation identifies ways for owners and contractors to deal with or defend against such trends. Topics include:

• Increasing numbers of devalued construction claims taking longer to resolve
  
• Increasing limitations on recovery of damages related to:
  
  • Concurrent delay
    
  • Compensable delay
    
  • Suspensions of work
    
  • Notice and filing requirements
    
  • Time extensions
    
  • Extended home office overhead
    
  • Risk transfer clauses
    
  • Differing site conditions
    
• Increased use of False Claims Acts to ward off claims
  
• New forms of claims, including:
  
  • Constructive claims
    
  • "Underinspection" claims
    
  • "Equipment lost productivity" claims
    
  • "Expanded" general conditions claims
    
• And much, much more!

Who Will Benefit?

This webinar is a must if you're a public or private owner, construction manager, contractor, subcontractor, consultant, architect, engineer or attorney.

Meet Your Presenters:

James G. Zack, CCM, CFCC, FAACE, FRICS, PMP
Executive Director
Navigant Construction Forum™

Mr. Zack is the Executive Director of the Navigant Construction Forum. The Forum strives to be the construction industry’s resource for thought leadership and best practices on avoidance and resolution of construction project disputes globally. Formerly he was the Executive Director, Corporate Claims Management, Fluor Corporation, one of the world’s largest publicly owned engineering, procurement, construction and maintenance (EPCM) contractors working in the areas of energy, chemicals, infrastructure, manufacturing, life sciences and mining. Mr. Zack was previously Vice President of PinnacleOne and the Executive Director of the PinnacleOne Institute and a Senior Construction Claims Consultant for CH2M HILL, Inc. Mr. Zack has, for nearly 40 years, worked on both private and public projects. In the construction claims field, he is a recognized and published expert in mitigation, analysis and resolution or defense of construction claims and disputes.

Stephen Pitaniello
Managing Director, Global Construction Practice
Navigant Consulting, Inc.

Mr. Pitaniello is a Managing Director with Navigant’s Global Construction Practice and a registered professional engineer with more than 23 years of diverse construction and engineering experience. His broad range of construction experience includes construction management, engineering design, estimating, contract administration and construction inspection in both the public and private sector. Throughout his career he has acquired solid project management skills by directly managing construction projects and teams of junior engineers and tradesmen. As a consultant, Mr. Pitaniello’s experience includes Critical Path Method (CPM) schedule development and analysis, owner’s representation services and project controls development. His experience also includes the preparation and analysis of various complex delay, acceleration, loss of productivity and professional liability (E&O) claims. He has been retained by owners, design professionals, contractors, subcontractors and their counsel and regularly provides services to include schedule delay analyses, damage analyses, productivity analyses, disputed extra work reviews, technical issue analysis, litigation support and expert testimony on a variety of complex construction projects. Mr. Pitaniello has performed these services on various projects to include airports, bridges, highways, correctional facilities, hospitals, power plants, railroad projects, retail, schools, universities, utility projects and sports complexes. Mr. Pitaniello has provided expert testimony in mediation, arbitration and depositions.