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 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
«REAL TIME» RESOLUTION 53
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, or by agreement binding. Recommendations may be admissible in later proceedings Generally entitlement only - quantum determination if requested 52
ADVANTAGES OF DRBs The DRB process works and works well High (98%) success rate
FREQUENCY OF DRBs In the US - as of 2010 > 2000 projects since 1986 On average 100 + cases per year In Canada : < 12 cases since 1996 * On average <1 case per year * seven cases with the Toronto Transit Commission 24
DRBs in the US
DRBs in the US State t Departments t of Transportation (DOT) California, Colorado, Florida, Idaho, Massachusetts, Nevada, New York, North Carolina, Ohio, Virginia, Washington
Example - FLORIDA DOT (Department of Transportation) DRB on each project over 10M$; About 30-40 DRBs each year (500 since 1998); 220 disputes submitted to DRBs, success rate of 98%; Public internet site with a list of all active DRBs, procedures, list of candidates, results, all written recommendations, etc.; http://www.dot.state.fl.us/construction/constadm/drb/dr BMain.shtm 22
FLORIDA DRBs Types of Disputes Submitted (FDOT 1996-2006) Deficiencies 6% Design Errors 7% Different soil conditions 27% Misc. 14% Quantities and pay items 21% Contract Interpretation 24% 23
DRB Influence on Florida DOT Arbitration Cases
DRBs in the US Cities, Airport or Transportation Authorities Dallas, Las Vegas, Miami, New York, Sacramento, San Francisco, San José, Seattle, Washington D.C.
East Side Access (7.3 B$) 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
DRBs in the US Universities, Conference Centers Univ. of Washington
DRBs in Canada Subway tunnels and stations, water tunnels, highways Vancouver Fredericton 1, 2 G. McEniry Revay Niagara and Associates Toronto 1, 2
TORONTO TRANSIT COMMISSION Seven (7) Subway Contracts from 1996-2002 Tunnels and Stations along Yonge St., Leslie, Don Mills, Sheppard, Bayview 3 Disputes Heard Return 46
Upcoming DRBs in Toronto Toronto Transit Commission York Spadina Extension (2010-2015) Two contracts now being bid with provisions for DRBs Return
NIAGARA TUNNEL(2005-2013) Return
Other DRBs in CANADA Trans-Canada Highway 275 km 2006-2007 New Brunswick Maine Return
Upcoming DRBs in Canada Nouveau Brunswick Maine Route 1: 55 km (2010-2011) Return
SEYMOUR CAPILANO TUNNEL Return
DRBs in Canada - Case Study A TALE OF TWO TUNNELS
NIAGARA TUNNEL(2005-2013) 27
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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 at regular meetings - discuss potential and real problems. discuss potential and real problems. 29
NIAGARA TUNNEL Contractor provided several Notices of Differing Subsurface Conditions (DSC). These Notices were rejected by the Owner. 30
NIAGARA TUNNEL A Broken rock in the crown 32
NIAGARA TUNNEL Vidéo 31
NIAGARA TUNNEL 33
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
NIAGARA TUNNEL DRB written Recommandation ( given 1 month after the hearing complex case) Concerned entitlement only and was non-binding Rejected the majority of the claims by the Contractor but pointed out the important quantity of overexcavation due to crown collapse was not anticipated in the GBR (Geotechnical Baseline Report). Also concluded that the type of rock support actually required was not adequately described in the GBR Determined that since both parties prepared the GBR that they should share responsibility for the delays and extra costs 36
RESULTS: NIAGARA TUNNEL No litigation - a negotiated settlement Initially a fixed price contract of 985 M$ with a completion date of June 2010 with severe penalties li for delays ; New «target» contract of 1,6G$ and completion date of December 2013. 37
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 recommendation can have an important impact on the project. 38
SEYMOUR CAPILANO TUNNEL 39
TUNNEL SEYMOUR CAPILANO DRB Construction of an access shaft Differing Subsurface Conditions Dispute Resolved by DRB recommendation during the course of the work 41
SEYMOUR CAPILANO TUNNEL 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; Contractor continued to refuse to return to work, asked that the DRB hear the dispute, but the Owner refused. 42
SEYMOUR CAPILANO TUNNEL Instability in the crown Fractured rock in the walls 43
SEYMOUR CAPILANO TUNNEL The Owner interpreted the Contractor s continuing refusal to return to work as a breach of Contract t resulting in termination, ti seizing the tunneling equipment ; Project was re-bid important delay Initial contract value for whole tunnel was 100M$, amount required to complete the remaining 50% was 180M$ the price for the last half tripled! Both sides are suing each other possibly years of expensive litigation to follow; 44
SEYMOUR CAPILANO TUNNEL Lessons Learned: Could this conflict have been resolved more amicably, cheaper and faster by the DRB? If the problem was technical the answer is likely yes after all, they had already resolved a previous technical dispute. If the problem was purely legal probably no. One thing is sure - without a DRB, the resolution of disputes like this will probably be long and expensive. 45
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% 56
CONCLUSION It s Time for more DRBs in Canada! 56
The use of DRBs is being encouraged elsewhere is Canada particularly for infrastructure projects 57