2013 EJCDC Construction Document Series

1. 2013 EJCDC Construction Document Series Changes and what they mean for you Matthew Skidmore, P.E. NC AWWA-WEA 95th Annual Conference

2. Who and what is ejcdc? • JV of 3 Sponsoring Organizations; ACEC, ASCE, NSPE • Liaison Organizations: Various owner, contractor, surety, insurance, attorney, equipment manufacturer, and other professional organizations • Origins: First docs published 1964 by NSPE/PEPP; first EJCDC docs published 1978 • Leading contracts for public works/infrastructure. Also suitable for “vertical construction”

3. Who and what is ejcdc? • EJCDC Mission • “EJCDC is a coalition of stakeholders in the project delivery process who develop and endorse quality contract documents and encourage their use through education and promotion.” • Different families of documents including Construction, Engineering, and Procurement • Used by many local engineering firms and municipal entities for Contract Documents

4. 2013 construction series updates • Integrated series of 25 documents • C-700, Standard General Conditions of the Construction Contract is the keystone of the construction series • Major overhaul of previous 2007 version • Traditional Design-Bid-Build projects • Assumes the design engineer is involved during construction • Intended for engineer-designed construction • Tend to favor Owner, but endorsed by: • Construction Specifications Institute (CSI) • National Utility Contractors Association (NUCA)

5. Overview of 2013 changes to General Conditions Site Conditions Changes to the Contract Claims Multiple parties working at site

6. Site conditions

7. Site conditions - Technical data Previous 2007 • Contract Documents Identify reports and drawings indicating subsurface and physical conditions • No explicit description of what information is considered technical data Current 2013 • As defined in Supplementary Conditions • Specifically list the information in reports considered to be Technical Data • Boring Logs • Water Levels • Laboratory Tests Default Definition • First-cap term “Technical Data” • Default definition if no Technical Data identified • Factual objective measurements from reports prepared specific to the project becomes Technical Data by default

8. Technical data EJCDC Intent • Create a default, baseline condition of what Bidders and Contractors may rely on for planning purposes • Stating that drawings and reports are not considered Contract Documents does not prejudice or defeat Contractor’s ability to rely on Technical Data

9. Changes to the contract

10. Changes to the Contract Engineer Review • 30 day review period • Approve or deny, either whole or in part • Notification to parties that Engineer is unable to render a decision • Take no action (considered to be a denial in whole) Current 2013 • Established Change Proposal process • Contractor submits Change Proposal at any point • On own volition • In response to Owner/Engineer prompt Previous 2007 • No Contractor-initiated changes • Contractor submitted change proposal/request in response to Owner/Engineer request • No formal review process. If unable to agree on price/time, file a Claim.

11. Change proposal Change Proposal prompted by Owner/Engineer/Other Owner-Authorized Changes to the Work Change in Subcontractor Required by Owner Contractor Notice of Delay Contractor Notice of Damage to Work by Others Contractor Notice of Change in Laws or Regulations Contractor Submits Change Proposal Change Proposal on Contractor’s own volition Accepted Change Order Owner Provides Response Contractor Proposed Changes in Work Engineer Evaluates and Provides Owner Recommendation Proposed Change Eliminated Rejected

12. Change proposal • EJCDC Intent • Emphasizes the routine nature of many adjustments in Contract Times and/or Prices • Attempts to resolve minor “first-level” issues at an informal level • Limits issues reaching Claim status and the contentiousness that often accompanies this

13. claims

14. claims Engineer’s Role • Claims negotiated directly between Owner and Contractor • Engineer provides technical input to Owner as appropriate Current 2013 • Narrowed definition of Claim • Appeal of Engineer’s decision on Change Proposal • Owner’s initial avenue for changes to Contract Time and/or Price. • Disputes that Engineer is unable to address Previous 2007 • Defined as any demand or assertion seeking change to Contract Time and/or Price • Decided by “impartial” Engineer

15. Claims Process Owner Claim Negotiation Unsuccessful Mediation Unsuccessful Dispute Resolution Litigation/Arbitration Contractor Claim Negotiation Successful Mediation Successful Direct Negotiations Change Order Claim can be withdrawn at any point in this process Mediation

16. Claims • EJCDC Intent • Claims will be viewed as significant project events that will involve higher-level decision makers • Engineer is no longer required to be an impartial arbiter of Claims • Engineer doesn’t appear to be unbiased when they are being paid by Owner

17. Multiple parties at the site

18. Multiple Parties at the site - conflict Owner’s Role • Owner may issue Change Order to compensate damaged Contractor • Owner may then submit a Claim against party responsible for damage and impose set-off • Owner may impose set-off for delays to work performed by Owner’s staff Current 2013 • In the event of unforeseen damage and/or delay, Claims follow line of privity through Owner • Contractor may submit Change Proposal for damages by another contractor working directly for Owner Previous 2007 • Contractors pursued claims against each other • No Owner or Engineer involvement • Contractor left with few options in the event of unforeseen damage and/or delay

19. Multiple parties at the site • EJCDC Intent • Provide a practical remedy for Contractor to resolve issues with other contractors on site. • All work must be done directly for the Owner, by arrangement of the Owner. Utilities working on their own typically do not apply.

20. Summary • EJCDC Intent of 2013 Construction Series changes • Documents updated to reflect changes within the construction industry • Logical allocation of risk between all parties • Provide clear and thorough direction to all parties • Be responsive to needs of all parties

21. Information available from EJCDC • Online Guidance • EJCDC.org • ASCE.org • NSPE.org • ACEC.org • EJCDC Narrative Documents • White papers • Standard form documents include “Notes to User” to assist in preparation • Seminars and webinars by EJCDC and member organizations

22. Discussion & Questions