Gerald McEniry, Eng., M.A.Sc., M.Eng., C. Med. Partner and Senior Consultant Revay and Associates, Montréal. G. McEniry October 2010

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1 Gerald McEniry, Eng., M.A.Sc., M.Eng., C. Med. Partner and Senior Consultant Revay and Associates, Montréal y,

2 Recall: DRBs A panel of 3 respected and impartial professionals with project specific experience Periodic meetings from beginning to end of project Objective is to review and resolve (even anticipate and avoid) disputes as they arrive rather than waiting to end of project 52

3 «REAL TIME» RESOLUTION 53

4 ADVANTAGES OF DRBs Informal and flexible process that favours communication and collaboration Timely Advisory Opinions or Written Recommendations Neutral and objective that adhere to the contract Generally non-binding but recommendations may be admissible in later proceedings may be admissible in later proceedings Generally entitlement only - quantum determination if requested 52

5 The DRB process works and works well High (98%) success rate

6 FREQUENCY OF DRBs In the US - as of 2010 > 2000 projects since 1986 On average cases per year In Canada : < 12 cases since 1996 * On average <1 case per year * seven cases with the Toronto Transit Commission 24

7 DRBs in the US

8 DRBs in the US State t Departments t of Transportation (DOT) California, Colorado, Florida, Idaho, Massachusetts, Nevada, New York, North Carolina, Ohio, Virginia, Washington

9 Example - FLORIDA DOT (Department of Transportation) DRB on each project over 10M$; About DRBs each year (500 since 1998); 220 disputes submitted to DRBs, success rate of 98%; Public internet site with a list of all active DRBs, procedures, list of candidates, results, all written recommendations, etc.; BMain.shtm 22

10 FLORIDA DRBs Types of Disputes Submitted (FDOT ) Deficiencies 6% Design Errors 7% Different soil conditions 27% Misc. 14% Quantities and pay items 21% Contract Interpretation 24% 23

11 DRB Influence on Florida DOT Arbitration Cases

12 DRBs in the US Cities, Airport or Transportation Authorities Dallas, Las Vegas, Miami, New York, Sacramento, San Francisco, San José, Seattle, Washington D.C.

13 East Side Access (7.3 B$) 7 contracts w/drbs 2 nd Av. Subway (4.5 B$) 2 contracts w/drbs #7 Line Subway (2.1 B$) 1 contract t w/drb Fulton Street Transit Center (1.4 B$) 1 contract w/drb

14 DRBs in the US Universities, Conference Centers Univ. of Washington

16 DRBs in Canada Subway tunnels and stations, water tunnels, highways Vancouver Fredericton 1, 2 Niagara Toronto 1, 2

17 TORONTO TRANSIT COMMISSION Seven (7) Subway Contracts from Tunnels and Stations along Yonge St., Leslie, Don Mills, Sheppard, Bayview 3 Disputes Heard Return 46

18 Upcoming DRBs in Canada Toronto Transit Commission York Spadina Extension ( ) DRB (optional) on 6 contract of about 100M$ each Return

19 NIAGARA TUNNEL( ) Return

20 Other DRBs in CANADA Trans-Canada Highway 275 km New Brunswick Maine Return

21 Upcoming DRBs in Canada Nouveau Brunswick Maine Route 1: 55 km ( ) Return

22 SEYMOUR CAPILANO TUNNEL Return

23 DRBs in Canada - Case Study A TALE OF TWO TUNNELS

24 NIAGARA TUNNEL( ) 27

25 28

26 NIAGARA TUNNEL DRB panel set-up at the start of the work; Three American engineers with a lot of experience in tunnels and DRBs; Meetings every 3 months: Site visits, participation in regular meetings, special meetings to discuss potential and real problems. meetings to discuss potential and real problems. 29

27 NIAGARA TUNNEL Contractor provided several Notices of Differing Subsurface Conditions (DSC). These Notices were rejected by the Owner. 30

28 NIAGARA TUNNEL A Broken rock in the crown 32

29 NIAGARA TUNNEL 33

30 NIAGARA TUNNEL After only 2500 m of excavation, that is 25% of the project, there were already important delays and huge cost increases to be expected. Contractor asked for a «formal hearing»; The parties jointly prepared a list of questions that were at the heart of the dispute for determination by the Board Each party then prepared a «position paper», then a rebuttal to the other side s position, Hearing lasted 4 days 34

31 RESULTS: NIAGARA TUNNEL No litigation - a negotiated settlement 37

32 Lessons Learned: NIAGARA TUNNEL A DRB can intervene at a critical time in a project to resolve a dispute without waiting to the end; A DRB is advantageous to resolve technically complex cases; Even a non-binding recommedation can have an important impact on the project. 38

33 SEYMOUR CAPILANO TUNNEL 39

34 TUNNEL SEYMOUR CAPILANO DRB Construction of an access shaft Differing Subsurface Conditions Dispute Resolved by DRB recommendation during the course of the work 41

35 SEYMOUR CAPILANO TUNNEL Tunnels Excavation halted in both tunnels after 3.5 km, or about 50% completion. According to the Contractor serious saftey problem concerning rock bursts refused to continue; Owner admitted there was a problem but that the design engineers had developed a solution (approved by independent experts) to work around the problem; 42

36 SEYMOUR CAPILANO TUNNEL Instability in the crown Fractured rock in the walls 43

37 SEYMOUR CAPILANO TUNNEL The Owner interpreted the Contractor s continuing refusaltoreturntoworkasabreach return as a of Contract resulting in termination, seizing the tunneling equipment ; Project was re-bid important delay costs increased Both sides are suing each other possibly years of expensive litigation to follow; 44

38 SEYMOUR CAPILANO TUNNEL Lessons Learned Could this conflict have been resolved more amicably, cheaper and faster by the DRB? If the problem was purely technical the answer is likely yes after all, they had already resolved a previous technical dispute. If the problem was purely legal no. One thing is sure - without a DRB, the resolution of disputes like this will probably be long and expensive. 45

39 CONCLUSION The DRB process presents some undeniable advantages: Simple, flexible, proactive, rapid, efficient and economical Objective, neutral Recommandations based on project specific technical experience Success rate of 98% Its Time for more DRBs in Canada! 56

40 The use of DRBs is being encouraged elsewhere is Canada particularly for infrastructure projects 57

Gerald McEniry, Eng., M.A.Sc., M.Eng., C. Med. Partner and Senior Consultant Revay and Associates, Montréal

Gerald McEniry, Eng., M.A.Sc., M.Eng., C. Med. Partner and Senior Consultant Revay and Associates, Montréal y, Advantages of DRBs Frequency of DRBs in the US and Canada Case Study Recall: DRBs A panel