Guidelines for Operation of a Regional DRB
1 GENERAL:
1.1 These procedures are for the purpose of providing processes for operation of a Regional Disputes Review Board (RDRB) and are intended to be flexible to meet circumstances that may
arise during the life of the project. "Dispute" as referenced in this procedure is defined as a disagreement between the Florida Department of Transportation ("Department") and the Contractor (referred to herein as the parties)
where the Contractor has submitted, in accordance with Standard Specification 5-12, a notice of intent to seek additional compensation but has not yet submitted a written claim in accordance with Standard Specification 5-12. "Claim"
as referenced in this procedure is defined as a written demand submitted to the Department by the Contractor in compliance with Standard Specification 5-12.3 seeking additional monetary compensation,
time, or other adjustments to the Contract, the entitlement or impact of which is disputed by the Department.
1.2 The role of this RDRB is to provide specialized expertise in technical areas and in administration of construction
contracts to assist the Department and the Contractor in resolving disputes or claims in a timely and equitable manner. Within the context of partnering, the RDRB serves to assist the parties in working through disagreements.
1.3
As provided in the specification contained in the construction contract, except for their participation in the RDRB activities, neither the Contractor nor the Department will solicit advice or consultation from the RDRB or it members on matters dealing
with the conduct of the work or resolution of problems. During meetings, site visits and hearings, no RDRB Member will express any opinion concerning the merit of any facet of a case or a potential dispute.
1.4 Upon request,
the Department will furnish to each of the RDRB members all documents necessary for the RDRB to perform its function including copies of all contract documents, plus periodic reports such as Engineer Weekly Summaries, minutes of the weekly progress
meeting, Submittal Register, Work Order Register, Supplemental Agreements Register and Claims Tracking Log that are pertinent to the dispute being considered. Also, at the time a dispute is presented to the RDRB for consideration, the Department/Contractor
will submit to the RDRB members all project documentation pertinent to the issue as necessary for the RDRB to have a complete understanding of the matter.
1.5 It must be emphasized and firmly understood that individual
RDRB Members are not the "representative of" or "advocate for" the party which selected them. The entire RDRB will function as an objective, impartial and independent body at all times. In order to avoid any suggestion of partiality, there
should be no individual communication in regard to the project between RDRB members and employees of the Contractor or Department during the life of the RDRB. THE PARTIES SHALL DIRECT ANY MATTERS NEEDING ATTENTION BETWEEN MEETINGS OF THE RDRB TO THE
CHAIRMAN OF THE RDRB AND CONCURRENTLY TO THE OTHER PARTY TO THE CONTRACT.
2 PRELIMINARIES
2.1. The RDRB members should agree to reserve at least one day per month for hearings to
avoid scheduling conflicts. Ex. the third Thursday
2.2 The Department should add the Regional Dispute Review Boards to the Preconstruction Conference Agenda for each project.
3 SUBMITTAL OF DISPUTES AND CLAIMS TO RDRB:
3.1 The RDRB encourages the Department and the Contractor to resolve potential disagreements without resorting to use of the RDRB. However, when it becomes apparent that resolution is unlikely to be accomplished by negotiation,
a dispute or claim should be moved as promptly as possible to the RDRB for its consideration. An escalation process shall be established between the parties that clearly outlines the steps leading to submission of an issue to the DRB. This
escalation process should be set up during Partnering, where applicable, and should be expedited to the greatest extent possible.
3.2 When the parties exhaust the written protest procedure set out in the RDRB Specification
(keeping in mind that, by agreement of the parties, steps may be omitted and time periods changed) either party can refer a dispute or claim to the RDRB. However, if the responding party needs additional time to prepare to present its side of the
issue(s), the parties should strive to mutually agree to a future date for presentation to the RDRB. Should a mutual date not be agreed upon, the RDRB will generally allow one 30-day continuance for the unprepared to prepare.
3.3
The RDRB will generally focus its written recommendation on matters of entitlement, allowing the parties to subsequently negotiate on the monetary damages for which entitlement has been determined. For relatively simple disputes or claims, if both
parties request and sufficient documentation is submitted, the RDRB may also make a concurrent recommendation on monetary damages. When matters of entitlement and monetary damages are separate, if the parties are unable to reach agreement on monetary
damages, the matter of monetary damages may be submitted to the RDRB. Unless otherwise agreed to by the parties, the matter of monetary damages should be submitted to the RDRB within 30 days after the RDRB issues its recommendation on entitlement. If
either the contractor or FDOT request a detailed analysis and report on the monetary issue, the RDRB, the contractor, and FDOT must agree on the scope of the additional services requested, the amount of the additional compensation expected, and how
the contractor and the FDOT will compensate the RDRB prior to the RDRB engaging in the detailed analysis.
3.4 The party referring a dispute or claim to the RDRB shall submit to the Chairman of the RDRB a written request
for a hearing with copies to the other RDRB Members and concurrently to the other party to the contract. Referral to the Board is accomplished by providing an issue statement outlining the nature and scope of the dispute or claim and describing the
basis for entitlement to the dispute or claim. Only disputes or claims that have been duly preserved under the terms of the Contract will be eligible to be heard by the RDRB. Requests for equitable adjustment that are disputed
must be certified as required by 4-3.2. Claims that are referred to the RDRB must be in compliance with 5-12.3. This request shall be accompanied by a summary of the issues on which the dispute or claim is based in sufficient
detail for the RDRB to gain an understanding of the dispute and for the other party to prepare a response. A listing of all subcontractors and parties (including Designer and CEI) to the project shall be included.
3.5
Any disputes or claims that were not resolved prior to Final Acceptance of the project pursuant to 5-11 must be referred to the RDRB within 90 calendar days after Final Acceptance for projects with an original Contract amount of $3,000,000 or less,
and within 180 calendar days after Final Acceptance on projects with an original Contract amount greater than $3,000,000. Only duly preserved disputes or claims will be eligible to be heard by the RDRB. Failure to submit all disputes or claims to
the Board within aforementioned timeframe after Final Acceptance constitutes an irrevocable waiver of the Contractor's dispute or claim.
3.6 Upon receiving a copy of the written request for a hearing before the DRB, the
responding party may submit a concise written issue statement on a dispute or claim for which a hearing before the RDRB has been requested. This issue statement must be submitted to all RDRB members and concurrently to the party requesting a hearing.
3.7 The RDRB Chairman will schedule a hearing no earlier than 20 calendar days after receiving the request for a hearing, except that this time may be reduced for simple or urgent matters.
3.8
Full position papers will be submitted by both parties and must be accompanied by supporting documents which are numbered and referred to in the position paper by page number. In the interest of expediting consideration of a dispute or claim, the
RDRB encourages the parties to cooperatively prepare a joint compilation of all pertinent documents with pages or exhibits consecutively numbered for ease of reference, for use by the parties in preparing submittals and during the hearing. The
full position papers will be submitted 15 calendar days prior to the hearing directly to each of the RDRB members and to the opposing party.
3.9 In large dollar or complex issues, the RDRB may meet privately to review
the information provided, discuss the procedures to be followed in hearing the dispute or claim and the method of presentation to be followed. The RDRB may also call a pre-meeting conference to discuss procedures with both the Department
and the Contractor.
3.10 The parties may submit to the RDRB statements in rebuttal to the other parties position statement provided that such statement is submitted to all RDRB Members and the other party so as to be received
by them not less than 5 calendar days prior to the date scheduled for the hearing.
3.11 At least 5 calendar days prior to the date scheduled for a hearing, each party must submit to the RDRB Members and to the other party
a list of the persons who will attend and/or represent them at the hearing.
4 CONDUCT OF HEARING ON DISPUTES AND CLAIMS:
4.1 Hearings will normally be conducted at the job site with
representatives of both the Department and the Contractor present. Should the jobsite facilities be inadequate for the number of participants expected, a meeting site agreeable to the parties will be selected and arranged for by the Department. Any
cost for the facility will be equally borne by the parties.
4.2 Hearings will be conducted in an informal manner. The party initiating the hearing will first discuss the dispute or claim followed by the responding party's
rebuttal. Each party will be allowed successive rebuttals until all information has been presented. The RDRB Members may ask questions as needed for them to have a complete understanding of the evidence. In large dollar or complex issues, an additional
day/days of hearings may be necessary in order for the RDRB to fully understand and consider all evidence presented by the parties. Should new information be presented that is not contained in the position or rebuttal statements previously
submitted to the RDRB and the other party, the hearing may be continued until a protesting party is afforded the opportunity to research and rebut the new information. The continuance should not exceed 30 days.
4.3
Attorneys are generally discouraged from attending RDRB meetings or hearings. Any participation in a hearing by legal counsel or independent claims or technical experts will be for the sole purpose of supporting a party's presentation, not making
the presentation or rebuttal statements for, with, or on behalf of the party. Legal counsel may not (a) examine directly or by cross-examination any witness, (b) Object to questions asked or factual statements made or related during the hearing or
(c) Make or argue legal motions. Legal counsel or independent claims or technical experts present must not make statements of fact for or on behalf of a party or witness and shall at all times comply with the instructions of the RDRB. The RDRB may
ask counsel for both parties to address legal issues that the RDRB determines would assist it in resolution of the dispute before it for consideration. There shall be no oral participation of either party's attorneys or independent claims or technical
experts at DRB meetings or hearings except for direct response to any questions asked by the DRB.
4.4 In the interest of keeping hearings completely informal, no formal record will be kept of a RDRB hearing. Any departure
will depend on the nature and magnitude of the dispute or claim and the attitude of the parties. Audio and/or video recordings are discouraged and may be made only if agreed to by both parties. Formal recording of a hearing by a court reporter requested
by a party will be allowed only if agreed to by the other party. The party requesting a record bears the court reporter costs. The DRB will be provided 4 copies of the transcript and the other party will be provided 1 copy.
5 ISSUANCE OF RDRB RECOMMENDATIONS:
5.1 The RDRB will meet in private following the hearing to formulate its recommendations. The recommendations will be based on the pertinent contract provisions and the facts and circumstances involved in the dispute or claim.
All individual views of the RDRB Members will be kept strictly confidential. Should there be additional questions, the Chairman may schedule a follow up hearing.
5.2 A written recommendation, using the format below, including
the underlying logic will be provided to the parties generally within 15 working days from the hearing. Every effort will be made to reach a unanimous decision. If the RDRB is unable to reach a unanimous recommendation, the dissenting member may prepare
a minority report to be included in the written recommendation, but the RDRB member preparing such report will not be revealed. Dissenting opinions are discouraged and should be offered only when the dissenting member strongly disagrees with the consensus
opinion. Any request for clarification will be made through the Chairman and answered in writing by the RDRB as a whole.
6 RECONSIDERATION OF RDRB RECOMMENDATIONS:
6.1 Although both
parties should place weight upon the recommendations of the RDRB, they are not binding. Either party may appeal a recommendation to the RDRB for reconsideration. Reconsideration should only be considered when there is new information to present or
what was assumed to be agreement on factual matters turns out to be incorrect, and clarification is needed. However, reconsideration should be the exception, not the rule. Rearguing the same issue on the same facts is not productive.
6.2 When the RDRB is of the opinion that a request for reconsideration or clarification is meritorious and will likely lead to resolution of the dispute or claim by the parties, it will honor that request. Usually, an additional
hearing is not needed. The RDRB reviews any new information together with commentary from the parties and, if necessary, prepares a revised recommendation or clarifies its recommendation in response to the matters raised.
PROTOTYPE RECOMMENDATION
Recommendation of Regional Dispute Review Board
Dispute No. __ District _____
Hearing Date: _______ Contractor________________
DISPUTE
(include project description, Contract #, Financial Project ID, and summary of disputed issue)
CONTRACTOR'S POSITION
DEPARTMENT'S POSITION RECOMMENDATION CITING SPECIFIC CONTRACT SECTIONS SUPPORTING THE DRB'S RECOMMENDATION.