1. E-61 / CLAIM AVOIDANCE

2. Construction Claim Avoidance Communicate - Communicate - Communicate We probably spend to much time talking and not enough listening. (State Wide Rumble Strip)

3. Construction Claim Avoidance  Starts at the Preconstruction Conference.  104.1.1 Voluntary Partnering  The department seeks to encourage a cooperative partnership with the contractor and its principal subcontractors and suppliers. This partnership should draw on the strengths of each organization to identify and achieve mutual goals. Its objectives are effective and efficient contract performance.  Partnering was the buzz word of the day not so long ago.  An attitude that WYDOT and the Contractor have different roles in completing the same job – that it works better to work together than to fight.  Schedule reviews / Contract requirements.  Timing on working a borrow.  Meeting windows.  Clear about your expectations.  Last job had great ride, bad line.

4. Construction Claim Avoidance  Visit the project often, build and maintain a relationship.  RE solves problems on the project, but can also avoid problems.  Don’t get to always see the good times.  A lot of small issues are solved without change orders or very small ones. (Spend a Little to save a lot).  Water coming through plant mix after milling. (Soft Spots)  Own the Relationship.  Coffee  Ed Steelman  Say good job. Point out things that are going well, acknowledge tough situations.  Structured Weekly Meetings. (Urban Jobs)

5. Construction Claim Avoidance  Be approachable when it comes to problems.  Project staffing is decreasing / cannot see everything.  Be seen as part of the solution and not part of the problem.

6. Construction Claim Avoidance  Identify and deal with issues as early as possible.  Time can make a minor issue a major problem.  Demand repair work before it becomes a reject.  Soft spot.  Rebar before concrete is placed.  Powder River Service Road Crushed Base.  PMP gradation changes.  Directing vs. inspecting  Sometimes a slippery slope  Wetting silica deck  Sledge hammers  Inexperienced contractors

7. Construction Claim Avoidance  If your having a hard time coming to terms… Communicate  Make sure you understand each others point of view.  May find where you disagree and maybe something can be done.  You will be in a much better position to defend WYDOT in a dispute.  You may not agree, but try to eliminate the fuzzy bit.

8. Resident Engineer and Section 104  104.2 - Contract Amendments  104.2.1 ¶1WYDOT has the right to amend the contract at any time.  104.2.1¶2 The department will consider requests from the contractor if 104.2.7 Contractor Notification is followed.

9. Resident Engineer and Section 104  The Resident takes ownership of Department initiated contract amendments. (Storm Sewer)  They can come from:  any one in the department (with authority, or I agree)  the contractor if I agree with the need and entitlement.

10. Resident Engineer and Section 104  What does ownership look like.  Make sure all issues are addressed.  Meet with the contractor on the project to discuss the need, how it will be done, available materials, what pay items will be used, including the use of existing pay items, impacts to schedule, affected subcontractor and how I plan to move forward.  Gather information and seek guidance/concurrence from District Staff, Maintenance Foreman, possibly Bridge, Geology, Materials and FHWA if applicable.  Follow up with verbally or in a letter stating reason for the amendment, pay items affected, new estimated quantities, request for prices, reminder to address subcontractors, traffic control and time.

11. Resident Engineer and Section 104  Contractor’s reply will be exhibit for change order.  Evaluate prices in accordance with Section 109.4 Extra and Force Account work which gives the hierarchy for preference of payment. 1) Contract Unit Prices (if representative / No significant changes in the character of the work) A. Overrun or document increased quantity in E-61. 2) Negotiated Prices (contract unit prices are not representative or item not in the contract) agreed to by WYDOT and the Contractor. A. The Engineer signs a statement that the prices have been reviewed and found reasonable. a) If I do not feel I can ethically sign that statement, spend some time with the contractor trying to reconcile the differences. (6 mile rd gravel) (Spur Water Line).

12. Resident Engineer and Section 104 3) Force Account/108.6.5 time (We often forget this option but it brings everyone to the table in good faith.) Prices should not be a reason for a claim. Contractor doesn’t feel in covers cost. WYDOT has to worry about production rates. Both hate the paper work.

13. Resident Engineer and Section 104  The spirit of section 104.2.7 Contractor-Engineer Notification.  Identify issue early.  Who ever identifies the issue, Contractor or WYDOT, needs to notify the other party early. (WYDOT is entitled to agree and to a mitigate issues).  Resolve the issue quickly at the lowest possible level of authority.  Once an issue has been identified, both parties need to respectfully seek resolution in good faith.  Pay the contractor a fair price for the work/allow adequate time.  Don’t take advantage of WYDOT because something was missed in the contract.  If the issue cannot be resolved at that level, escalate the issue the next level.  A way for WYDOT to escalate a dispute(104.2.6 The department will not consider any condition at an available source or local materials whether furnished by the department or the contractor, as meeting the requirements of Subsections 104.2.2 Differing Site Conditions, or 104.2.4 Significant Changes in the Character of Work.)

14. Resident Engineer and Section 104  What is 104.2.7.2 First Notice, by Contractor  Any perceived indication the contractor feels an issue exists.  Follow up to get to the bottom of the issue even small ones.  If I at any point I come to agree, I would take ownership.  If I disagree that a contract amendment is needed, I would continue to seek resolution through verbal and written communication both with contractor and others in WYDOT, so long as we were productive in seeking resolution.

15. Resident Engineer and Section 104  Either WYDOT or the contractor can use 104.2.7 Contractor Notification to escalate an issue in order to get it resolved. If I feel it is necessary to escalate the issue I will use it.  This is headed to a claim, it does not mean the RE has failed and now the DE or Chief Engineer needs to step in and save the day.  There are some things Resident Engineers cannot do to resolve a dispute.

16. Resident Engineer and Section 104  If you do not agree the following were met (Entitlement), the RE cannot resolve the issue except to convince the contractor he is not entitled.  104.2.2 Differing Site Conditions  104.2.3 Engineer-Ordered Suspensions  104.2.4 Significant Changes in the Character of Work  There are many things in the contract the RE responsible to enforce that can go to dispute.  Monetary Damages related to quality assessment, or time.  Warranty work (2 week on chip seal, plants for city).  Removal or corrective work related to quality.  Contractor does not agree to WYDOT definition of quality or seeks to limit monetary damages.  I would also use 104.2.7 Contractor Notification as grounds to deny a claim if the work associated with an issue was completed and afterwards the contractor sought compensation.  WYDOT was not given opportunity to agree an issue existed or to try and mitigate it.

17. Resident Engineer and Section 104  In order to get to the Chief Engineer’s decision it will take about 7 months so make sure you have done all you could to solve the issue within your authority. If you don’t, you will wish you had by the time this is done.  It is your job to take care of issues on your projects.  Solving the issue, if you can, is easier than going through the claim process. (Lowest level is easiest, best and most satisfying)  Greater effort here will make your defense stronger. (Answer the hard questions now so they don’t surprise you in front of the DE or Chief Engineer.)  District 3 has meeting/negotiation with RE/DCE/Contractor.

18. Resident Engineer and Section 104  This is headed to a claim, so Document / Document / Document  I would get out the spec book and follow 104.2.7 Contractor Notification to the T, including time frames. (Written Acknowledgement, 10 working day response.)  Don’t be a stingy in agreeing time extensions while remembering that drawing out this process is not solving the issue. (Avoid Pettiness)  Letters should include the contractors next step, the time frame and possibly what the information being provided will be used for. (Push for all info.)  From here on the letter “RE:”  Copy the contract language. (Formal)  Stick to Facts & Site Contract  Don’t be provocative.  Sincerely vs. Respectfully  Give their argument better than they do.  Work closely with your DCE

19. Resident Engineer and Section 104  To escalate the issue and as documentation, I would write a letter directing the contractor to comply with 104.2.7.3 Written Notice, by Contractor within 5 days.  I start the claim package in a 3 ring binder as soon as I think it might head to a claim.  While I don’t expect the contractor to make the WYDOT case, I don’t think that the Resident Engineer should have to make the contractors case. (Don’t say what they want, Why it is due, E-61 headings)  That is why I start a 3 ring note book early, to ensure I get all of the WYDOT information in the “claim package”.  It is easier to do at the time than try and remember later.  You will have the chance to insert your information into the claim package when you render your decisions. (It is the basis of you decision.)

20. Resident Engineer and Section 104  At this point, it is too late to start documenting. Have good documentation practices in place.  Diaries, appropriate letters, pictures and video need to be taking place throughout. (chip seal video)  Someone is going to second guess your documentation, want more.  (Knowledge at the time.)  EDS diaries are shorter – Pete still uses paper for this reason.  The three ring binder gives you a good idea of where you are, so you may be able to shore up the case. It is better to have good documentation practices happening all along. You never know.

21. Resident Engineer and Section 105.15  I had one project go to Court Ordered Arbitration.  My general impressions.  The AG’s office will help you through, but it will be unfamiliar.  You are no longer in charge of the time line. It is going to take a long time. (Frustrating)  You will hear nothing for long periods of time. When suddenly at your busiest time you have to provide a very large amount of specific information and thoughts in a short amount of time with a perjury statement attached to it to add to the pressure. Then nothing…  I would consider having all information ready to send when asked.  Depositions are well thought out ahead of time by the opposing lawyers, they will not follow a train of thought, they will circle back and are designed to keep you off guard.  Take serious the AG’s advice to only answer the question ask. If yes will do, answer yes. (Answer the question, Miranda rights-don’t answer questions not asked).