Adrianne s Portion

8/6/2019 Adrianne s Portion

1/57

Claims Administrationand Procedure Under

the AIA and EJCDC

Adrianne Huffman ChillemiAdrianne Huffman ChillemiSeptember 19, 2008September 19, 2008


2/57

EJCDC

1.1. Reference to EJCDC is to theReference to EJCDC is to theEngineers Joint Contract DocumentEngineers Joint Contract Document

Committee of the National Society ofCommittee of the National Society ofProfessional EngineersProfessional Engineers

1.1 EJCDC General Conditions is1.1 EJCDC General Conditions isform Cform C--700700


3/57

AIA

2.2. Reference to AIA is to TheReference to AIA is to TheAmerican Institute of ArchitectsAmerican Institute of Architects

2.1 General Conditions is AIA2.1 General Conditions is AIADocument A201Document A201 20072007


4/57

CLAIM

3.3.Claim DefinedClaim Defined

3.13.1 EJCDC General Conditions,EJCDC General Conditions,

Paragraph 1.01AParagraph 1.01A

11.11. ClaimClaim -- A demand or assertionA demand or assertionby OWNER or CONTRACTOR seeking anby OWNER or CONTRACTOR seeking an

adjustment of Contract Price or Contractadjustment of Contract Price or ContractTimes, or both, or other relief with respectTimes, or both, or other relief with respectto the terms of the Contract. A demand forto the terms of the Contract. A demand formoney or services by a third party is not amoney or services by a third party is not a

Claim.Claim.


5/57

3.23.2 AIAAIA--201 General Conditions,201 General Conditions,

Section 15.1.1 DefinitionsSection 15.1.1 Definitions

A Claim is a demand or assertion byA Claim is a demand or assertion byone of the parties seeking, as a matter ofone of the parties seeking, as a matter of

right, payment of money or other relief withright, payment of money or other relief withrespect to the terms of the Contract. Therespect to the terms of the Contract. Theterm "Claim" also includes other disputesterm "Claim" also includes other disputesand matters in question between the Ownerand matters in question between the Owner

and Contractor arising out of or relating toand Contractor arising out of or relating tothe Contract. The responsibility tothe Contract. The responsibility tosubstantiate Claims shall rest with the partysubstantiate Claims shall rest with the partymaking the Claim.making the Claim.


6/57

OWNER CAUSED CLAIMS

4.4. Reasons for Claims arising underReasons for Claims arising underconstruction contractsconstruction contracts

4.14.1 Owner caused:Owner caused: 4.1.14.1.1 Additions to plans;Additions to plans; 4.1.24.1.2 Changes to plans;Changes to plans; 4.1.34.1.3 Delays;Delays;

4.1.44.1.4 Misrepresentations;Misrepresentations;andand 4.1.54.1.5 InterferenceInterference

4.1.64.1.6 Delay or Failure to MakeDelay or Failure to Make

PaymentPayment


7/57

ENVIRONMENTAL CLAIMSCLAIMS

4.24.2 EnvironmentalEnvironmental

4.2.1 Unexpected site4.2.1 Unexpected site

conditionsconditions 4.2.2 Weather delays4.2.2 Weather delays

4.2.3 Other4.2.3 Other

4.3.1 Prime Contractor4.3.1 Prime ContractorDelaysDelays

4.3.2 Subcontractor4.3.2 Subcontractor

DelaysDelays


8/57

5.5. Continuance of WorkContinuance of Work


9/57

5.15.1 EJCDC General Conditions,EJCDC General Conditions,Paragraph 6.18Paragraph 6.18 Continuing the WorkContinuing the Work

A. CONTRACTOR shall carry onA. CONTRACTOR shall carry onthe Work and adhere to the progressthe Work and adhere to the progress

schedule during all disputes orschedule during all disputes ordisagreements with OWNER. No Workdisagreements with OWNER. No Workshall be delayed or postponed pendingshall be delayed or postponed pendingresolution of any disputes orresolution of any disputes or

disagreements, except as permitted bydisagreements, except as permitted byparagraph 15.04 or as OWNER andparagraph 15.04 or as OWNER andCONTRACTORmay otherwise agree inCONTRACTORmay otherwise agree inwriting.writing.


10/57

5.25.2 AIA General Conditions,AIA General Conditions,Section 15.1.3, 15.1.4 and 15.1.5Section 15.1.3, 15.1.4 and 15.1.5

Continuing Contract PerformanceContinuing Contract Performance. Pending. Pendingfinal resolution of a Claim, except asfinal resolution of a Claim, except asotherwise agreed in writing or as providedotherwise agreed in writing or as provided

in Subparagraph 9.7 and Article 14, thein Subparagraph 9.7 and Article 14, theContractor shall proceed diligently withContractor shall proceed diligently withperformance of the Contract and the Ownerperformance of the Contract and the Ownershall continue to make payments inshall continue to make payments inaccordance with the Contract Documents.accordance with the Contract Documents.The Architect will prepare Change OrdersThe Architect will prepare Change Ordersand issue Certificates for Payment inand issue Certificates for Payment inAccordance with the decisions of the InitialAccordance with the decisions of the InitialDecision Maker.Decision Maker.


11/57

AIA General Conditions, Section 15.1.4, ClaimsAIA General Conditions, Section 15.1.4, Claims

for Additional Costfor Additional Cost

If the Contractor wishes to make aIf the Contractor wishes to make aClaim for an increase in the ContractClaim for an increase in the ContractSum, written notice as providedSum, written notice as providedherein shall be given beforeherein shall be given beforeproceeding to execute the Work.proceeding to execute the Work.Prior notice is not required for ClaimsPrior notice is not required for Claims

relating to an emergencyrelating to an emergencyendangering life or property arisingendangering life or property arisingunder Section 10.4.under Section 10.4.


12/57

AIA General Conditions, SectionAIA General Conditions, Section 15.1.5.1,15.1.5.1,

Claims for Additional TimeClaims for Additional Time

If the Contractor wishes to make Claim forIf the Contractor wishes to make Claim foran increase in the Contract Time, writtenan increase in the Contract Time, written

notice as provided herein shall be given.notice as provided herein shall be given.The Contractors Claim shall include anThe Contractors Claim shall include anestimate of cost and of probable effect ofestimate of cost and of probable effect ofdelay on progress of the Work. In thedelay on progress of the Work. In thecase of a continuing delay, only one Claimcase of a continuing delay, only one Claimis necessary.is necessary.


13/57

AIA General Conditions, Section 15.1.5.2,AIA General Conditions, Section 15.1.5.2,

Claims for Additional Time/WeatherClaims for Additional Time/Weather--RelatedRelated

If adverse weather conditions are theIf adverse weather conditions are thebasis for a Claim for additional time, suchbasis for a Claim for additional time, such

Claim shall be documented by dataClaim shall be documented by datasubstantiating that weather conditionssubstantiating that weather conditionswere abnormal for the period of time,were abnormal for the period of time,could not have been reasonablycould not have been reasonablyanticipated and had an adverse effect onanticipated and had an adverse effect onthe scheduled construction.the scheduled construction.


14/57

NOTICE

6.6. Notice of a Claim.Notice of a Claim.

6.16.1 EJCDC General Conditions,EJCDC General Conditions,Paragraph 10.05Paragraph 10.05

A.A. Notice:Notice: Written noticeWritten noticestating the general nature of eachstating the general nature of eachClaim, dispute, or other matter shallClaim, dispute, or other matter shall

be delivered by the claimant tobe delivered by the claimant toENGINEERand the other party toENGINEERand the other party tothe Contract promptly (but in nothe Contract promptly (but in noevent later than 30 days) after theevent later than 30 days) after thestart of the event giving rise thereto.start of the event giving rise thereto.


15/57

Notice of the amount or extent of theNotice of the amount or extent of the

Claim, dispute, or other matter withClaim, dispute, or other matter withsupporting data shall be delivered tosupporting data shall be delivered tothe ENGINEER and the other party tothe ENGINEER and the other party tothe Contract within 60 days after thethe Contract within 60 days after the

start of such event (unless ENGINEERstart of such event (unless ENGINEERallows additional time for claimant toallows additional time for claimant tosubmit additional or more accuratesubmit additional or more accuratedata in support of such Claim,data in support of such Claim,

dispute, or other matter)dispute, or other matter)


16/57

D. No Claim for an adjustment inD. No Claim for an adjustment in

Contract Price or Contract Times (orContract Price or Contract Times (orMilestones) will be valid if notMilestones) will be valid if notsubmitted in accordance with thissubmitted in accordance with thisparagraph 10.05.paragraph 10.05.


17/57

6.26.2 AIAAIA--201 General Conditions,201 General Conditions,Section 15.1.2Section 15.1.2

Notice of ClaimsNotice of Claims. Claims by either. Claims by eitherthe Owner or the Contractor must bethe Owner or the Contractor must beinitiated by written notice to the otherinitiated by written notice to the other

party and to the Initial Decision Maker.party and to the Initial Decision Maker.Claims by either party must be initiatedClaims by either party must be initiatedwithin 21 days after occurrence of thewithin 21 days after occurrence of theevent giving rise to such Claim or within 21event giving rise to such Claim or within 21days after the claimant first recognizes thedays after the claimant first recognizes the

condition giving rise to the Claim,condition giving rise to the Claim,whichever is later.whichever is later.

6.2.16.2.1 Concept of reserving aConcept of reserving a

Claim versus realClaim versus real--time Claimstime Claims


18/57

6.36.3 Does failure to give timelyDoes failure to give timely

written notice in accordance with thewritten notice in accordance with theterms of the contract bar a Claimterms of the contract bar a Claimunder North Carolina law?under North Carolina law?


19/57

6.3.16.3.1 Generally. See, e.g.Generally. See, e.g.Blankenship Constr. Co. v. StateBlankenship Constr. Co. v. State

Highway CommnHighway Commn, 28 N.C. App. 593,, 28 N.C. App. 593,222 S.E. 2d 452 (1976) (denying a222 S.E. 2d 452 (1976) (denying acontactors claim for additional workcontactors claim for additional workfor failure to give written notice tofor failure to give written notice tothe contracting authority eventhe contracting authority even

though the contracting authority wasthough the contracting authority wason actual notice of the unanticipatedon actual notice of the unanticipatedconditions). See alsoconditions). See also Biemann andBiemann andRowell v. Donohoe CompaniesRowell v. Donohoe Companies, 147, 147

N.C. App 239, 556 S.E. 2d 1 (2001),N.C. App 239, 556 S.E. 2d 1 (2001),which required compliance with thewhich required compliance with thewritten notice provision of thewritten notice provision of thecontract because:contract because:


20/57

failure to give proper notice to thefailure to give proper notice to thearchitect prevented the architect fromarchitect prevented the architect from

performing as an arbiter of disputes;performing as an arbiter of disputes;

acceptance of final payment was aacceptance of final payment was awaiver of a Claim under the generalwaiver of a Claim under the generalconditions of the contract; andconditions of the contract; and

failure to give proper notice was afailure to give proper notice was a

breach of [Biemanns] duty to mitigatebreach of [Biemanns] duty to mitigatedamages and prejudiced the other partysdamages and prejudiced the other partysability to cure any problem.ability to cure any problem.


21/57

But see, Davidson and Jones, Inc. v.But see, Davidson and Jones, Inc. v.N.C. Dept. of Admin.N.C. Dept. of Admin., 315 N.C. 144,, 315 N.C. 144,337 S.E. 2d 463 (1995) (apparently337 S.E. 2d 463 (1995) (apparentlyrelaxing the notice requirements inrelaxing the notice requirements inthe public contracting area).the public contracting area).


22/57

WAIVER OFNOTICE

6.3.26.3.2 Can the contracts noticeCan the contracts noticerequirements be waived?requirements be waived?


23/57

6.3.2.16.3.2.1 It has been wellIt has been well--established inestablished inNorth Carolina that [t]he provisions of aNorth Carolina that [t]he provisions of awritten contract may be modified orwritten contract may be modified or

waived by a subsequent parol (oral)waived by a subsequent parol (oral)agreement, or by conduct which naturallyagreement, or by conduct which naturallyand justly leads the other party to believeand justly leads the other party to believethe provisions of the contract are modifiedthe provisions of the contract are modifiedor waived.or waived.W.E. Garrison Grading v.W.E. Garrison Grading v.

Piracci ConstructionPiracci Construction,27 N.C. App. 725, 221,27 N.C. App. 725, 221S.E. 2d 512 (1975) quotingS.E. 2d 512 (1975) quotingJ.R. Graham v.J.R. Graham v.Randolph CountyRandolph County, 212 S.E. 2d 542, 544, 212 S.E. 2d 542, 544--4545N.C. App. 1975). See alsoN.C. App. 1975). See also Childress v.Childress v.Trading PostTrading Post, 247 N.C. 150, 100 S.E., 247 N.C. 150, 100 S.E.

2d391 (1957);2d391 (1957); SonSon--Shine Grading v. ADCShine Grading v. ADCConstructionConstruction, 68 N.C. App. 417, 315 S.E., 68 N.C. App. 417, 315 S.E.2d 346 (1984);2d 346 (1984); Triangle Air v. CaswellTriangle Air v. CaswellCountyCounty, 57 N.C. App 482, 291 S.E. 2d 808, 57 N.C. App 482, 291 S.E. 2d 808(1982).(1982).


24/57

6.3.36.3.3 What if a contract may onlyWhat if a contract may onlybe amended in writing?be amended in writing?


25/57

6.3.3.16.3.3.1 EJCDC GeneralEJCDC GeneralConditions, Paragraph 3.04Conditions, Paragraph 3.04

A. The Contract Documents mayA. The Contract Documents maybe amended to provide for additions,be amended to provide for additions,

deletions, and revisions in the Workdeletions, and revisions in the Workor to modify the terms andor to modify the terms andconditions thereof in one of more ofconditions thereof in one of more of

the following ways: (i) a Writtenthe following ways: (i) a WrittenAmendment; (ii) a Change Order; orAmendment; (ii) a Change Order; or(iii) a Work Change Directive.(iii) a Work Change Directive.


26/57

B. The requirements of the ContractB. The requirements of the ContractDocuments may be supplemented,Documents may be supplemented,

and minor variations and deviationsand minor variations and deviationsin the Work may be authorized, byin the Work may be authorized, byone or more of the following ways:one or more of the following ways:

(i) a Field Order; a (ii) ENGINEERs(i) a Field Order; a (ii) ENGINEE

Rsapproval of a Shop Drawing orapproval of a Shop Drawing or

Sample; or (iii) ENGINEERs writtenSample; or (iii) ENGINEERs writteninterpretation or clarification.interpretation or clarification.


27/57

6.3.3.26.3.3.2 AIAAIA--201 General201 General

Conditions, Section 1.1.2 TheConditions, Section 1.1.2 The

ContractContract


28/57

The Contract Documents form theThe Contract Documents form theContract for Construction. TheContract for Construction. The

Contract represents the entire andContract represents the entire andintegrated agreement between theintegrated agreement between theparties hereto and supersedes priorparties hereto and supersedes priornegotiations, representations ornegotiations, representations or

agreements, either written or oral.agreements, either written or oral.The Contract may be amended orThe Contract may be amended ormodifiedmodified onlyonlyby a Modification. Theby a Modification. TheContract Documents shall not beContract Documents shall not be

construed to create a contractualconstrued to create a contractualrelationship of any kindrelationship of any kind


29/57

(1) between the Contractor and the(1) between the Contractor and theArchitect or the ArchitectsArchitect or the Architects

Consultants,Consultants,

(2) between the Owner and a(2) between the Owner and a

Subcontractor or a SubSubcontractor or a Sub--subcontractor,subcontractor,

(3) between the Owner and the(3) between the Owner and theArchitect or the ArchitectsArchitect or the Architectsconsultants orconsultants or


30/57

(4) between any persons or entities(4) between any persons or entities

other than the Owner and theother than the Owner and theContractor. The Architect shall,Contractor. The Architect shall,however, be entitled to performancehowever, be entitled to performanceand enforcement of obligationsand enforcement of obligations

under the Contract intended tounder the Contract intended tofacilitate performance of thefacilitate performance of theArchitects duties.Architects duties.


31/57

Paragraph 1.1.1 .A Modification isParagraph 1.1.1 .A Modification is

(1) a written amendment to the(1) a written amendment to the

Contract signed by both parties,Contract signed by both parties,

(2) a Change Order,(2) a Change Order,

(3) a Construction Change Directive(3) a Construction Change Directiveoror

(4) a written order for a minor(4) a written order for a minorchange in the Work issued by thechange in the Work issued by the

Architect.Architect.


32/57

WAIVERWAIVER

6.3.3.36.3.3.3 Waiver can occur by oralWaiver can occur by oralagreement or conduct even where aagreement or conduct even where achange, modification or amendmentchange, modification or amendmenthas to be in writing by the contracthas to be in writing by the contractterms. Seeterms. See GarrisonGarrison andand GrahamGraham,,supra.supra. See in particularSee in particular GeneralGeneral

Specialties Company v. Nello TeerSpecialties Company v. Nello TeerCompanyCompany, 41 N.C. App. 273, 54 S.E., 41 N.C. App. 273, 54 S.E.2d 658 (1979).2d 658 (1979).


33/57

General incurred additional offGeneral incurred additional off--sitesitestorage costs and submitted a claimstorage costs and submitted a claim

to Nello Teer. Nello Teer refused theto Nello Teer. Nello Teer refused theclaim becauseclaim because writtenwritten notice was notnotice was notgiven within 72 hours of the claimgiven within 72 hours of the claim

arising as provided in their contract.arising as provided in their contract.The Court concluded the writtenThe Court concluded the writtennotice provision had been waivednotice provision had been waivedbecause an Assistant V.P. of Nellobecause an Assistant V.P. of NelloTeerTeer orallyorallyagreed to the offagreed to the off--sitesitestorage.storage.


34/57

6.3.3.46.3.3.4 How can this apparentHow can this apparentcontradiction in court decisions becontradiction in court decisions bereconciled?reconciled?


35/57

6.46.4 How can notice issues beHow can notice issues be

avoided?avoided?

6.4.16.4.1 THE PARTIES SHOULD BETHE PARTIES SHOULD BE

ADVISED TOREAD AND ST

RICTLYADVISED TO

READ AND ST

RICTLYCOMPLY WITH THE NOTICECOMPLY WITH THE NOTICE

PROVISIONS OF THE CONTRACTPROVISIONS OF THE CONTRACTBEFORE THE WORK IS COMMENCEDBEFORE THE WORK IS COMMENCED


36/57

6.4.26.4.2 If a contractor has not strictlyIf a contractor has not strictlycomplied with the notice provisions,complied with the notice provisions,

thenthen as soon as possibleas soon as possible thethecontractor should make a Claim incontractor should make a Claim inwriting by including the following:writing by including the following:

a. A recital of the specific contracta. A recital of the specific contractprovisions being relied upon in theprovisions being relied upon in the

contract;contract;


37/57

b. Identify and describe the extrab. Identify and describe the extrawork that is, was or will bework that is, was or will be

performed;performed;

c. Set forth the facts upon whichc. Set forth the facts upon which

the contractor relied showing thatthe contractor relied showing thatthe owner had knowledge or directedthe owner had knowledge or directedthe work be performed;the work be performed;

d. State the facts regarding thed. State the facts regarding theauthority or the apparent or actualauthority or the apparent or actualauthority of the representative whoauthority of the representative who

directed the work be performed;directed the work be performed;


38/57

e. State any facts which suggeste. State any facts which suggestthe Owner ratified itsthe Owner ratified its

representatives directions;representatives directions;

f. State any facts that indicate thef. State any facts that indicate the

owner had actual knowledge that theowner had actual knowledge that thecontractor claimed the work to becontractor claimed the work to beextra work prior to the contractorextra work prior to the contractor

performing;performing;


39/57

g. State any facts which suggestg. State any facts which suggestthe contractor performed thethe contractor performed the

disputed work under protest anddisputed work under protest andreserved its rights to be paid or havereserved its rights to be paid or havethe contract amended or modified atthe contract amended or modified at

a later date; anda later date; and

h. Consult with an attorney.h. Consult with an attorney.


40/57

CLAIM RESOLUTION

7.7. Claim ResolutionClaim Resolution

7.17.1 Claims generally have to firstClaims generally have to firstbe submitted to thebe submitted to theEngineer/Architect in accordance withEngineer/Architect in accordance withthe terms of the contract betweenthe terms of the contract between

the owner and contractor.the owner and contractor.

7.1.17.1.1 EJCDC GeneralEJCDC GeneralConditions, Paragraph 10.05Conditions, Paragraph 10.05


41/57

A.A. Notice:Notice: Written notice stating theWritten notice stating the

general nature of each Claim, dispute,general nature of each Claim, dispute,or other matter shall be delivered byor other matter shall be delivered bythe claimant to ENGINEER and thethe claimant to ENGINEER and theother party to the Contract promptlyother party to the Contract promptly

(but in no event later than 30 days)(but in no event later than 30 days)after the start of the event giving riseafter the start of the event giving risethereto.thereto.


42/57

Notice of the amount or extent of theNotice of the amount or extent of theClaim, dispute, or other matter withClaim, dispute, or other matter with

supporting data shall be delivered tosupporting data shall be delivered tothe ENGINEER and the other party tothe ENGINEER and the other party tothe Contract within 60 days after thethe Contract within 60 days after the

start of such event (unlessstart of such event (unlessENGINEERallows additional time forENGINEERallows additional time forclaimant to submit additional orclaimant to submit additional ormore accurate data in support ofmore accurate data in support of

such Claim, dispute, or othersuch Claim, dispute, or othermatter).matter).


43/57

A Claim for an adjustment in ContractA Claim for an adjustment in ContractPrice shall be prepared in accordancePrice shall be prepared in accordance

with the provisions of paragraphwith the provisions of paragraph12.01B. A Claim for an adjustment in12.01B. A Claim for an adjustment inContract Time shall be prepared inContract Time shall be prepared inaccordance with the provisions ofaccordance with the provisions of

paragraph 12.02B. Each Claim shallparagraph 12.02B. Each Claim shallbe accompanied by claimants writtenbe accompanied by claimants writtenstatement that the adjustmentstatement that the adjustmentclaimed is the entire adjustment toclaimed is the entire adjustment to

which the claimant believes it iswhich the claimant believes it isentitled as a result of said event.entitled as a result of said event.


44/57

The opposing party shall submit anyThe opposing party shall submit any

response to ENGINEER and theresponse to ENGINEER and theclaimant within 30 days after receiptclaimant within 30 days after receiptof the claimants last submittalof the claimants last submittal

(unless ENGINEER

allows additional(unless ENGINEER

allows additionaltime).time).


45/57

7.1.27.1.2 AIAAIA--201 General201 General

Conditions, Section 15.2,Conditions, Section 15.2, InitialInitialDecisionDecision

15.2.1. Claims, excluding those15.2.1. Claims, excluding thosearising under Sections 10.3, 10.4,arising under Sections 10.3, 10.4,11.3.9, and 11.3.10, shall be11.3.9, and 11.3.10, shall bereferred to the Initial Decision Makerreferred to the Initial Decision Maker

for initial decision. The Architectfor initial decision. The Architectshall serve as the Initial Decisionshall serve as the Initial DecisionMaker, unless otherwise indicated inMaker, unless otherwise indicated inthe Agreement.the Agreement.


46/57

Except for those Claims excluded by thisExcept for those Claims excluded by thisSection 15.2.1, an initial decision shall beSection 15.2.1, an initial decision shall be

required as a condition precedent torequired as a condition precedent tomediation of any Claim arising prior to themediation of any Claim arising prior to thedate final payment is due, unless 30 daysdate final payment is due, unless 30 dayshave passed after the Claim has beenhave passed after the Claim has been

referred to the Initial Decision Maker withreferred to the Initial Decision Maker withno decision having been rendered. Unlessno decision having been rendered. Unlessthe Initial Decision Maker and all affectedthe Initial Decision Maker and all affectedparties agree the Initial Decision Makerparties agree the Initial Decision Maker

will not decide disputes between thewill not decide disputes between theContractor and persons or entities otherContractor and persons or entities otherthan the Owner.than the Owner.


47/57

15.2.215.2.2 The Initial Decision Maker willThe Initial Decision Maker willreview Claims and within ten days ofreview Claims and within ten days of

the receipt of the Claim take one orthe receipt of the Claim take one ormore of the following actions:more of the following actions:

(1) request additional supporting data(1) request additional supporting datafrom the claimant or a response withfrom the claimant or a response withsupporting data from the other party,supporting data from the other party,


48/57

(2) reject the Claim in whole or in(2) reject the Claim in whole or in

part,part,

(3) approve the Claim,(3) approve the Claim,

(4) suggest a compromise, or(4) suggest a compromise, or


49/57

(5) advise the parties that the Initial(5) advise the parties that the InitialDecision Maker is unable to resolve theDecision Maker is unable to resolve the

Claim if the Initial Decision Maker lacksClaim if the Initial Decision Maker lackssufficient information to evaluate thesufficient information to evaluate themerits of the Claim or if the Initialmerits of the Claim or if the InitialDecision Maker concludes that, in theDecision Maker concludes that, in the

Initial Decision Maker s sole discretion, itInitial Decision Maker s sole discretion, itwould be inappropriate for the Initialwould be inappropriate for the InitialDecision Maker to resolve the Claim.Decision Maker to resolve the Claim.

7.27.2 Party making the claim has theParty making the claim has theburden of proof (of convincing) the Initialburden of proof (of convincing) the InitialDecision Maker .Decision Maker .


50/57

7.37.3 Decision by Architect/EngineerDecision by Architect/Engineer

7.3.17.3.1 EJCDC GeneralEJCDC GeneralConditions, Paragraph 10.05Conditions, Paragraph 10.05


51/57

B.B. ENGINEERs Decision:ENGINEERs Decision:

ENGINEERwill render a formalENGINEERwill render a formal

decision in writing within 30 daysdecision in writing within 30 daysafter receipt of the last submittal ofafter receipt of the last submittal ofthe claimant or the last submittal ofthe claimant or the last submittal of

the opposing party, if any.the opposing party, if any.ENGINEERs written decision on suchENGINEERs written decision on suchClaim, dispute or other matter will beClaim, dispute or other matter will befinal and binding upon OWNER andfinal and binding upon OWNER and

CONTRACTOR unless:CONTRACTOR unless:


52/57

1. an appeal from ENGINEERS1. an appeal from ENGINEERSdecision is taken within the timedecision is taken within the timelimits and in accordance with thelimits and in accordance with thedispute resolution procedures setdispute resolution procedures setforth in Article 16; orforth in Article 16; or


53/57

2. if no such dispute resolution2. if no such dispute resolutionprocedures have been set forth inprocedures have been set forth inArticle 16, a written notice ofArticle 16, a written notice ofintention to appeal from ENGINEERsintention to appeal from ENGINEERswritten decision is delivered bywritten decision is delivered byOWNER or CONTRACTOR to theOWNER or CONTRACTOR to the

other and to ENGINEERwithin 30other and to ENGINEERwithin 30days after the date of such decision,days after the date of such decision,andand


54/57

a formal proceeding is instituted by thea formal proceeding is instituted by theappealing party in a forum ofappealing party in a forum of

competent jurisdiction, within 60 dayscompetent jurisdiction, within 60 daysafter the date of such decision or withinafter the date of such decision or within60 days after Substantial Completion,60 days after Substantial Completion,whichever is later (unless otherwisewhichever is later (unless otherwiseagreed in writing by OWNER andagreed in writing by OWNER andCONTRACTOR), to exercise such rightsCONTRACTOR), to exercise such rightsor remedies as the appealing partyor remedies as the appealing party

may have with respect to such Claim,may have with respect to such Claim,dispute, or other matter in accordancedispute, or other matter in accordancewith applicable Laws and Regulations.with applicable Laws and Regulations.


55/57

C. If ENGINEER does not render aC. If ENGINEER does not render a

formal decision in writing within theformal decision in writing within thetime stated in paragraph 10.05B, atime stated in paragraph 10.05B, adecision denying the Claim in itsdecision denying the Claim in itsentirety shall be deemed to haveentirety shall be deemed to have

been issued 31 days after receipt ofbeen issued 31 days after receipt ofthe last submittal of the claimant orthe last submittal of the claimant orthe last submittal of the opposingthe last submittal of the opposing

party, if any.party, if any.


56/57

7.3.27.3.2 AIAAIA--201 General Conditions,201 General Conditions,Section 15.2Section 15.2

15.2.515.2.5 The Initial Decision Maker willThe Initial Decision Maker willrender an initial decision approving orrender an initial decision approving orrejecting the Claim, or indicating that therejecting the Claim, or indicating that theInitial Decision Maker is unable to resolveInitial Decision Maker is unable to resolve

the Claim. This initial decision shallthe Claim. This initial decision shall (1) be in writing;(1) be in writing;

(2) state the reasons therefor; and(2) state the reasons therefor; and

(3) notify the parties and the Architect, if(3) notify the parties and the Architect, ifthe Architect is not serving as the Initialthe Architect is not serving as the InitialDecision Maker, of any change in theDecision Maker, of any change in theContract Sum or Contract Time or both.Contract Sum or Contract Time or both.


57/57

The initial decision shall be final andThe initial decision shall be final andbinding on the parties but subject tobinding on the parties but subject tomediation and, if the parties fail tomediation and, if the parties fail toresolve their disputes throughresolve their disputes throughmediation, to binding disputemediation, to binding disputeresolution.resolution.