DBIA Dispute Resolution and Claims Management 5 — Questions and Answers
Question 1: Under DBIA principles, 'changed conditions' and 'changed scope' are distinct because:
- Changed conditions require owner approval; changed scope does not
- Changed conditions arise from unforeseen physical circumstances, while changed scope results from owner-directed modifications (Correct answer)
- Changed scope claims must go to arbitration, while changed conditions go to mediation
- Changed conditions are covered by insurance; changed scope is not
Correct answer: Changed conditions arise from unforeseen physical circumstances, while changed scope results from owner-directed modifications
Changed conditions relate to unexpected physical site conditions, while changed scope involves owner-initiated modifications to the project's agreed work.
Question 2: A design-builder wishes to dispute an owner's unilateral deduction from a progress payment. The most appropriate initial contractual remedy is typically:
- Suspending work immediately to force resolution
- Filing a mechanics lien on the project
- Issuing a written dispute notice and following the contract's dispute resolution ladder (Correct answer)
- Notifying the project's insurance carrier of a potential claim
Correct answer: Issuing a written dispute notice and following the contract's dispute resolution ladder
Most DBIA contracts require a step-by-step dispute resolution process beginning with written notice before escalating to mediation or arbitration.
Question 3: The 'concurrent delay' doctrine is relevant in design-build disputes because:
- It allows the design-builder to accelerate without owner approval
- When both parties contribute to a delay simultaneously, neither can recover delay damages from the other (Correct answer)
- It shifts all delay liability to the owner's geotechnical consultant
- It eliminates the need for a critical path method schedule analysis
Correct answer: When both parties contribute to a delay simultaneously, neither can recover delay damages from the other
Under the concurrent delay doctrine, if both the owner and design-builder cause delays occurring simultaneously, neither party can recover delay-related damages from the other.
Question 4: In a mini-trial used to resolve a design-build dispute, the distinguishing feature compared to full arbitration is:
- A panel of judges from the American Arbitration Association presides
- Senior executives of both parties hear condensed presentations and attempt a negotiated settlement (Correct answer)
- The process is binding without the right to appeal
- All subcontractors must participate as named parties
Correct answer: Senior executives of both parties hear condensed presentations and attempt a negotiated settlement
A mini-trial brings senior decision-makers together to hear abbreviated arguments, creating a realistic settlement opportunity by exposing each side's case to their own leadership.
Question 5: Which scheduling analysis technique is considered the gold standard for proving compensable delay in U.S. design-build disputes?
- As-planned versus as-built comparison
- Time impact analysis (TIA) using contemporaneous updates (Correct answer)
- Narrative delay analysis based on daily reports
- Percent-complete tracking from payment applications
Correct answer: Time impact analysis (TIA) using contemporaneous updates
Time Impact Analysis (TIA) uses contemporaneous schedule updates to model the specific impact of each delay event on the critical path, making it the most widely accepted method.
Question 6: An owner's failure to provide timely approvals on a design-build project may give rise to a claim for:
- Breach of warranty under the Spearin Doctrine
- Constructive acceleration if the design-builder is required to maintain the completion date despite the delay (Correct answer)
- Liquidated damages assessed against the owner
- Force majeure relief for the design-builder
Correct answer: Constructive acceleration if the design-builder is required to maintain the completion date despite the delay
When an owner-caused delay forces the design-builder to accelerate work to meet an unchanged contract completion date, this constitutes constructive acceleration entitling the design-builder to additional compensation.
Question 7: In design-build claims management, 'contemporaneous records' are critical primarily because:
- They satisfy OSHA recordkeeping requirements for the project
- They provide real-time evidence of causation, costs, and schedule impact that is far more credible than reconstructed records (Correct answer)
- They are required to be filed with the owner within 24 hours of any cost event
- They replace the need for expert witness testimony in arbitration
Correct answer: They provide real-time evidence of causation, costs, and schedule impact that is far more credible than reconstructed records
Contemporaneous records — daily reports, photographs, cost records, and schedule updates created at the time events occur — carry significantly more evidentiary weight than records reconstructed later.
DBIA Dispute Resolution and Claims Management 5
Under DBIA principles, 'changed conditions' and 'changed scope' are distinct because: