Dispute Review Boards: Using the Law as a Guide in Settling Construction Contract Disputes

In the spring of 2017, a contractor submitted a Notice of Intent (NOI) to file a claim for additional compensation for implementation of “100% pile driving analysis (PDA)” on the production piles to achieve the required bearing capacity in Bents #5 and #6 of a bridge being constructed as part of a project to widen and improve a major thoroughfare in Pensacola, Florida. In the summer of that same year, the contractor submitted another NOI to file a separate claim for additional compensation for implementation of 100% PDA on the production piles in Bents #1, #2, and #3 of the same project. The contractor claimed that, based on geotechnical reports provided by Florida Department of Transportation, they (the contractor) did not expect to have to use the PDA, and thus did not bid the job to include the PDA; therefore, their having to employ the PDA was “unforeseeable work.” When the parties could not reach agreement, both parties requested a hearing be conducted by the Disputes Review Board (DRB) assigned to that project. The hearing focused on both claims. At the hearing’s conclusion, in a unanimous decision, the Board recommended “ENTITLEMENT” for the contractor. This paper offers insight into the progression of the DRB process from the beginning of the project to the conclusion of the hearing, as executed by one of the oldest and best-established DRB programs in the US.