CHANGES AND WHAT THEY MEAN FOR YOU2013 EJCDC CONSTRUCTION DOCUMENT SERIES

Matthew Skidmore, P.E.

NC AWWA-WEA 95TH ANNUAL CONFERENCE

WHO AND WHAT IS EJCDC?

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• 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”

WHO AND WHAT IS EJCDC?

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• 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

2013 CONSTRUCTION SERIES UPDATES

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• 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)

OVERVIEW OF 2013 CHANGES TO GENERAL CONDITIONS

• SITE CONDITIONS• CHANGES TO THE CONTRACT• CLAIMS• MULTIPLE PARTIES WORKING AT SITE

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SITE CONDITIONS

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SITE CONDITIONS - 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

Previous 2007• Contract

Documents Identify reports and drawings indicating subsurface and physical conditions

• No explicit description of what information is considered technical data

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

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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

CHANGES TO THE CONTRACT

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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.

CHANGES TO THE CONTRACT

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CHANGE PROPOSAL

Change Proposal on Contractor’s own volition

Contractor Proposed Changes

in Work

Owner Provides Response

Engineer Evaluates and Provides Owner

Recommendation

Proposed Change

Eliminated

Change OrderAccepted

Rejected

Change Proposal prompted by Owner/Engineer/OtherOwner-Authorized

Changes to the Work

Contractor Submits Change Proposal

Contractor Notice of Delay

Contractor Notice of Change in Laws

or Regulations

Contractor Notice of Damage to Work

by Others

Change in Subcontractor

Required by Owner

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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

CLAIMS

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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

CLAIMS

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Owner Claim

Contractor Claim

Direct Negotiations Mediation

Change Order

Dispute Resolution Litigation/Arbitration

Negotiation Unsuccessful

Negotiation Successful

MediationUnsuccessful

MediationSuccessful

CLAIMS PROCESS

Claim can be withdrawn at any point in this process

CLAIMS

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• 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

MULTIPLE PARTIES AT THE SITE

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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

MULTIPLE PARTIES AT THE SITE - CONFLICT

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MULTIPLE PARTIES AT THE SITE

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• 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.

SUMMARY

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• 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

INFORMATION AVAILABLE FROM EJCDC

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• 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

DISCUSSION & QUESTIONS

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