STANDARDS AND EXPECTATIONS GUIDE DIVISION OF …...• Familiarity with ODOT’s Partnering...

2013

PARTNERING FACILITATOR STANDARDS AND EXPECTATIONS GUIDE DIVISION OF CONSTRUCTION MANAGEMENT

OHIO DEPARTMENT OF TRANSPORTATION 1980 WEST BROAD STREET COLUMBUS, OHIO 43223

Partnering Facilitator Standards and Expectations

O H I O D E P A R T M E N T O F T R A N S P O R T A T I O N

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TABLE OF CONTENTS

Introduction..................................................................................................................................................2

Training and Registration..............................................................................................................................3

Partnering Specifications, Proposal Notes, and Partnering Concepts on ODOT Construction Projects.......3

Familiarity with ODOT’s Construction Specifications, Policies and Procedures...........................................3

Partnering Facilitator Role Compared to Dispute Resolution Board/Dispute Resolution Advisor Roles......4

Initial Partnering Session…………….................................................................................................................5

Partnering Update Sessions……………………....................................................................................................8

Progress Meetings .....................................................................................................................................10

Post Milestone Meetings………………………………………...................................................................................10

General Follow-Through and Connection with Team.................................................................................11

Post-Construction Meeting w/ Close-Out Survey.......................................................................................11

Partnering Facilitator - Method of Payment...............................................................................................12

Partnering Facilitator Evaluation………………................................................................................................12

APPENDICES

A - ODOT Reference Materials....................................................................................................................13

B - Agendas/Forms .....................................................................................................................................15

C - Partnering Facilitator Payment Requirements......................................................................................24

D - Partnering Specifications and Proposal Notes……………………………….....................................................26

E - Partnering Concepts..............................................................................................................................69



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Introduction Welcome to the Ohio Department of Transportation (ODOT) statewide Partnering program. ODOT has made the concept of “Partnering” an available tool for project engineers and contractors since the 1990s. ODOT has found that when the people involved in building a project truly adopt the Partnering

concept, those projects more frequently meet safety, cost, schedule, and quality objectives—and have few, if any, unresolved disputes at project close out. The assistance of a neutral third party can help with the adoption of and follow-through with partnering by the project team. This is the role of the Partnering Facilitator.

As part of its approach to implementing a widely accepted and used Partnering program, ODOT has developed Partnering Specifications, Proposal Note, and Partnering Concepts (Appendix D and

Appendix E) in cooperation with the Ohio Contractors Association (OCA). The Facilitator’s role in

implementing ODOT’s Partnering Specifications, Proposal Notes, and Partnering Concepts is important and will have a significant impact on the success of the ODOT Partnering Program in particular and overall ODOT project delivery in general.

ODOT has established this Partnering Facilitator Standards and Expectations Guide to promote quality and consistency in its statewide Partnering program. Facilitators are expected to follow and be

evaluated against these Standards and Expectations. Facilitators also must register with the ODOT Partnering Program before performing work. In turn, the ODOT Partnering Program Facilitator listing will be a resource from which construction project personnel can find available Facilitators and engage them

to provide Partnering services. This information sharing will help Facilitators in promoting their services

to all ODOT’s districts statewide and will aid project teams in making an informed selection.

There are Appendices at the end of this guide to provide Facilitators with relevant background

information which Partnering Facilitators will be expected to be knowledgeable. Appendix A contains reference material that will direct you to ODOT’s construction policies and procedures, as well as

information of other functions available on the Division of Construction Management website. Appendix B contains agendas and forms that Partnering Facilitators are expected to use. Appendix C contains information on Partnering Facilitator payment. Appendix D includes ODOT’s Partnering Specifications

and Proposal Notes. Appendix E contains the Partnering Concepts presentation given to project personnel. The Partnering Concepts presentation demonstrates ODOT and OCA’s mutual philosophies

regarding Partnering. All of these materials will help you as a Partnering Facilitator to better understand ODOT’s construction operations and thus aid in your effectiveness to assist project teams.

ODOT appreciates Partnering Facilitators’ efforts in helping project teams work effectively and efficiently together and in promoting an overall culture of partnership. We acknowledge and value the

array of styles that different Facilitators offer, but want to ensure that there is a high quality, consistent approach on all ODOT projects with Facilitated Partnering.



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Training and Registration

In order to professionally facilitate one of ODOT’s construction projects, you must first attend one of ODOT’s Partnering Facilitator training sessions hosted at ODOT central office. The training will provide

you with the information and tools to successfully perform Partnering Facilitation on ODOT projects. After attending the Partnering Facilitator Training those wishing to be considered for ODOT Partnering Facilitation services should submit their resumes to ODOT’s Statewide Partnering Coordinator (<[email protected]>).

Partnering Specifications, Proposal Notes, and Partnering Concepts on ODOT

Construction Projects

ODOT’s Partnering Specifications and Proposal Notes (Appendix D) includes details regarding ODOT’s Partnering program, as well as DRBs and DRAs. ODOT’s Partnering Concepts (Appendix E) is used to provide guidance and training to ODOT personnel and contractors, but is for the benefit of all project

Partnering participants. These documents will be valuable resources to you in understanding ODOT’s overall Partnering Process on construction projects.

Standards:

• Familiarity with ODOT’s Partnering Specifications, Proposal Notes and Partnering Concepts.

Facilitator Expectations:

• Perform Partnering Facilitator responsibilities consistent with ODOT’s Partnering Specifications, Proposal Notes, and Partnering Concepts.

• Ensure that advice, coaching, and recommendations you make to ODOT and Contractor personnel are consistent with ODOT’s Partnering Specifications, Proposal Notes, and Partnering Concepts.

Familiarity with ODOT’s Construction Specifications, Policies, and Procedures

You will be facilitating discussions among people who have technical knowledge in highway engineering and construction methods. Being able to understand their “language,” specifications, policies,

procedures, and typical issues will ensure that you are a more effective Partnering Facilitator.

In addition to being familiar with ODOT’s specifications related to project Partnering and dispute resolution, it is recommended that once engaged you become familiar with pertinent contract requirements of your specific project. ODOT and Contractor personnel can highlight these when you confer or meet to plan the Initial Partnering Session.

Facilitator Standards:

• Preferred – familiarity with ODOT’s construction specifications, policies, procedures, and terminology, as well as ODOT’s project Partnering and dispute resolution processes.



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• Minimum – familiarity with highway construction practices and terminology, as well as ODOT’S project Partnering and dispute resolution processes.


• Gain familiarity with ODOT’s construction specifications, policies, procedures, and terminology, as well as ODOT’s dispute resolution processes.

• Become familiar with project-specific requirements, including special provisions that impact key elements of the work.

Partnering Facilitator Role Compared to Dispute Resolution Board/Dispute

Resolution Advisor Roles

Your role as a Partnering Facilitator is to act as a professional neutral focused on helping the project

team to collaborate, build consensus on common goals and objectives, communicate effectively,

establish performance metrics, proactively plan/look ahead, and prevent and resolve disputes at the

project level. A Dispute Resolution Board (DRB) or a Dispute Resolution Advisor (DRA) are third parties

that will be appointed on some projects to assist the project team in its resolution of disputes and claims

by offering non-binding technical reviews and recommendations. See Appendix C for PN 108 (Dispute

Resolution Board Process) and PN 109 (Dispute Resolution Board Advisor Process).

In resolving issues, disputes or claims, these roles are distinctly different. The Partnering Facilitator does not offer technical or contract interpretation opinions, but rather provides structure, coaching, and process advice to help guide the project team toward resolving issues and disputes internally.

Although a proactive DRB/DRA has a dispute prevention role in the sense that issues/disputes can be

brought up and discussed during regular meetings, it is not the role of the DRB to provide detailed advice and coaching to project teams on issues/disputes relating to day-to-day management of project.

Partnering and DRBs/DRAs should be viewed as distinct, but complementary, processes. The Partnering Facilitator is expected to assist the project team in implementing the two processes consistent with appropriate roles and responsibilities.



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Initial Partnering Session

The purpose of the Initial Partnering Session is to initiate teambuilding; set expectations and common project goals; identify roles of stakeholders; review project challenges and develop mitigation strategies;

consider “stretch goals” for the project and develop enhancement strategies; establish communication protocols; develop a procedure for decision making and issue resolution; and establish the Partnering plan for the remainder of the project.

The Facilitators’ reports from the Partnering sessions will document the team’s commitment to working together openly and cooperatively to achieve mutual goals during the life of the project. These mutual

goals may include core project delivery goals, project-specific goals, and mutually supported individual

goals. The core project delivery goals are required. The team is encouraged to also add its own project-

specific goals and is allowed, if desired, to include mutually supported individual goals. Standards:

• Understand construction, Partnering, and facilitation to ensure that the Initial Partnering Session engages the necessary parties and forms a solid base on which to build a Partnering relationship and plan.

• Understand that ODOT and Contractor personnel are the project team leaders and need to be empowered to provide project team leadership.

• Refer to ODOT “Construction and Material Specifications” (C&MS) 2013 108.02 (2010 SS 800 108.02, if applicable) (Appendix D).


Hold an Initial Partnering Session separate from the Preconstruction Meeting, but no later than one month after the Preconstruction Meeting.

Prior to the Initial Partnering Session contact and confer with:

ODOT project personnel. This should include the Project Engineer, Area Engineer, and the District Construction Administrator.

Contractor company management representative. This should include one or more of the top executives in the company and the Contractor’s project manager.

Any other personnel as suggested by ODOT or the Contractor.

In coordination with ODOT, invite the Designer and the MOT Designer. This may be a consultant or an ODOT engineer. If acceptable with ODOT, contact the Designer to discuss project highlights. The MOT Designer also has potential to provide great insight and should be present on projects with significant MOT requirements.

In coordination with ODOT and the Contractor, identify and invite all other stakeholders necessary to make the project successful. This could include subcontractors that will be performing critical work, utility companies, transportation entities (i.e., railroads), public agencies (resource agencies or local agencies that have funding or permitting authority), and community leaders.

Understand the needs and objectives of the project team. This may be done through individual phone interviews of or meetings with project team members, managers, and/or executives.



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Understand what objectives the project team leaders have for the Initial Partnering Session workshop to ensure that their expectations are met.

If requested, assist the ODOT Project Engineer and the Contractor in locating an appropriate facility for the Partnering session.

Meeting Agenda Item I: Welcome and Introductions/Project Status Report

Follow ODOT Partnering Form CA-G-2 “Initial Partnering Session Agenda/Minutes” (see Appendix B).

Have introductions made for all in attendance – who they represent and their role on the project.

Perform a quick high-level review of the project: potentially, the project purpose and final project outcome. Use any visual aids ODOT, the Contractor, or the Designer may have (if available). The majority of those in attendance will be familiar with the project but this may be helpful if there are third party stakeholders present who may not have information about the overall project plan.

Explain the definition and role of Partnering on an ODOT construction project. Describe what it is, as well as what it is not, and the value to the project of using Partnering concepts. Explain the differences between Facilitated Partnering and the DRB/DRA processes.

Address any preconceived ideas about Partnering that may be brought out in the pre-session interviews or meetings.

Meeting Agenda Item II: Identify Roles of Stakeholders

Conduct breakout exercises in which each group of stakeholders develops a list of their needs, objectives, and suggested general strategies for a successful project in regards to the specific stakeholder. The stakeholder groups should be manageable in size to promote discussion. Grouping is flexible as the Facilitator sees necessary.

Have the stakeholders describe their perceived role in the life cycle of the project and describe what their group could potentially need from the other groups for a successful project. Each group should present these perceived needs for discussion. This enables dialogue and identifies expectations from each stakeholder’s perspective.

Confirm through a consensus building discussion that these expectations are realistic and are in line with the stakeholders’ role on the project.

Meeting Agenda Item III: Statewide and Project Specific Goals

• Distribute the statewide partnering goals to both ODOT and the Contractor (use the ones in ODOT Partnering Form CA-G-2 “Initial Partnering Session Agenda/Minutes”) (Appendix B). Discuss with the group that these goals are effective on all facilitated partnered projects and have been mutually agreed upon by ODOT and the Ohio Contractors Association.

Canvas the group to identify project-specific goals and objectives to be added to the standard goals.

Develop a consensus on project goals and objectives consistent with contractual obligations, including specific goals concerning safety, quality, schedule, budget, and VECPs (excluding Design-Build projects).



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Identify how the teams will measure performance against the project goals and objectives.

Encourage the project team members to set a goal for winning a Partnering award and to document their processes, challenges, and successes toward that goal.

Meeting Agenda Item IV Breakout Group Exercise (Mitigation/Enhancement Strategies)

Develop breakout groups of cross-organization Partnering teams consisting of ODOT and Contractor senior personnel, project personnel, and stakeholders:

Sr. Level: District and Contractor staff (DCAs, VPs, Area Managers)

Project Level: District and Contractor staff that are building the project and managing the work

3rd party stakeholders (Utilities, Municipalities, etc.) Project Risks and Challenges/Mitigation Strategies

Have each team identify any potential risks and challenges to the project’s success and appropriate mitigation strategies for those risks.

Lead the group in agreeing on the project risks and developing appropriate mitigation strategies.

Project Enhancements (“Stretch Goals”)/Enhancement Strategies

Have each team identify any opportunities for project enhancements and appropriate enhancement strategies.

Lean the group in determining whether the enhancements are appropriate, and, if so, recommend that these be added to the project goals and objectives.

Meeting Agenda Item V- Breakout Group Exercise (Project-Specific Objectives with Action Plans)

Review the identified risk areas on the project. Have the breakout groups develop a specific

action plan (what, who, when?) for implementing risk mitigation strategies.

Review the project goals and proposed enhancements. Have the breakout groups agree on

which items are achievable and develop a specific action plan (what, who, when?) to

implement those enhancements.

Have a consensus-building discussion with all participants evaluate and adopt the proposed

specific actions plans. The Facilitator should consider having the group prioritize the action

plans into nearer term and longer term periods.

Meeting Agenda Item VI: Communications and Decision Making Protocols

Develop (and/or confirm) the communication/decision making protocol. Establish and agree upon proper communication methods and channels.

Establish project-specific submittal, RFI, and schedule update protocols with anticipated submittal and response times.



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Canvas ODOT and Contractor personnel for actual project names/positions for each level of decision-making and their level of authority.

Meeting Agenda Item VII: Issue Identification and Dispute Resolution Process

Develop (and/or confirm) the issue identification and resolution process that identifies, monitors, and attempts to resolve issues at the level closest to work, but also provides timely escalation if issues are not or cannot be resolved at the project level.

Review the requirements of the dispute resolution process and note that the process will need to be consistent with Notice and Mitigation defined in C&MS 108.02F and the Dispute Resolution and Administrative Claims Process defined in C&MS 108.02G.

Potentially review a sample “challenges” issue: who would handle, and the timing/ communication steps anticipated.

Meeting Agenda Item VIII: Partnering Follow Up Plan

Identify who will be the Partnering champions for the project team (Contractor/ODOT/3rd Party Stakeholders).

Assist in establishing team expectations and commitments regarding Partnering monitoring and updating. Details such as safety, quality, schedule, important dates, standard agenda items, communications, roles, and logistics may be included.

Assist the project team in developing a plan to provide the Partnering Facilitator with regular project updates. This should include who will be responsible for sending meeting minutes (Progress/DRB/any other time sensitive meetings).

Meeting Agenda Item IX: Session Evaluation

Canvas the participants on their “plus/delta” feedback (plus=what did they like about the session; delta=what would they change in future sessions).

Remind the project team that the online Partnering monitoring surveys are required for Facilitated Partnering projects as per C&MS 108.02E. The Partnering monitoring survey can be found on the web at:

http://www.dot.state.oh.us/Divisions/ConstructionMgt/Pages/Partnering.aspx Require all participants to fill out the Partnering evaluation form. The ODOT Project Engineer

will distribute and collect the evaluations and submit them to the Statewide Partnering Coordinator in ODOT's central office

Partnering Update Sessions

Professionally facilitated Partnering Update Sessions are required by Proposal Note 111 (Appendix D). It is recommended that they be held quarterly, but the frequency can be adjusted by the ODOT

Project Engineer and the Contractor Project Manager. Alternatives may be preferred and established by the project team in implementing the Partnering Process on a particular project. Such alternatives

may include team leader-facilitated executive Partnering sessions with executive management from

http://www.dot.state.oh.us/Divisions/ConstructionMgt/Pages/Partnering.aspx



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both ODOT and the Contractor; construction season kick-off Partnering sessions for multi-year jobs; and/or as needed professionally–facilitated Partnering sessions based on the results of quarterly Partnering evaluations or for specific issues where the project team feels Partnering Facilitation is needed.

The Partnering Update Sessions allow the Facilitator, ODOT, and the Contractor to monitor the success of their Partnering efforts. It is important for the project team as a whole to monitor team alignment/collaboration, communication, risk management, and dispute prevention efforts. The Facilitator should monitor the progress of the Partnering relationship based on the goals decided during the Initial Partnering Session through an on-line survey that is used to assess goal progress

and identify potential issues. ODOT and Contractor personnel should complete the survey prior to every Partnering update session.

Standards:

Proposal Note 111: Partnering Update Sessions are required for the project team and the Facilitator.

• Refer to ODOT C&MS 2013 108.02E (2010 SS 800 108.02E, if applicable).


Prior to the Partnering Update Session:

• Remind the project team that the online Partnering monitoring surveys are required for Facilitated Partnering projects as per C&MS 108.02E. Assist the team in completing this survey. The Partnering monitoring survey can be found at: http://www.dot.state.oh.us/Divisions/ConstructionMgt/Pages/Partnering.aspx

• Understand that the Update Partnering Session evaluation survey is a powerful tool for providing feedback to the project team staff, managers, and executives and for continuously promoting Partnering throughout the life of the project.

• ODOT encourages Facilitators to expand their survey services to allow for short-term key risks/issues to be added, edited, or removed quarterly per project team agreement.

• Using information about the status of the project, analyze all survey results. Make contact as needed with ODOT personnel, Contractor personnel, and other project team members to discuss poor results or declining trends and what could be done to improve.

• Confer with the project team on who should be invited to the update session. Note that only key stakeholders need to be invited to the Partnering Update Session.

• Coordinate and lead the Partnering Update Session. Note that the Partnering Facilitator may choose to propose an agenda based on the Initial Partnering Session Agenda (Appendix B).

• Note that the frequency of the Partnering Sessions can be adjusted by the ODOT Project Engineer and the Contractor Project Manager.

During the Partnering Update Session:

Create an atmosphere that encourages open discussion to ensure the project stays on track and the team achieves its project goals and objectives.

Assist the project team in identifying Partnering successes. This is intended to start discussions on

positive Partnering results (and potentially support application for a Partnering award).




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Review the issues identified in the survey results and facilitate discussion on areas for

improvement.

Review the project goals established at the initial meeting and evaluate whether these goals are on

track to be attained or need to be adjusted.

Develop a group consensus on any specific actions (what/who/when) need to be taken to address

issues or challenges identified in the Partnering Update Session.

Require all participants to fill out the Partnering evaluation form. Note that the Partnering

evaluation form is required only after the first Partnering Update Session; thereafter it will be at

the discretion of the ODOT Project Engineer and the Contractor Project Manager.

Progress Meetings The practice of holding monthly meetings among ODOT and Contractor personnel is well-established on most ODOT jobs. The Partnering Facilitator is not expected to be present in these meetings, but should assist the project team, as needed, on using the progress meeting as a Partnering tool.


• Encourage the team to integrate Partnering into its progress meetings, and to include other stakeholders, such as a key subcontractor or ODOT Designer, when appropriate. Often these meetings are used simply for identifying the status of the project, but they can be valuable as a Partnering tool if used for communicating information, planning and coordinating work, sharing and solving issues and problems, and managing risk and challenges.

• As part of the Partnering sessions, assist the project team in developing a project management plan that includes ODOT/Contractor roles and responsibilities regarding scheduling and planning meetings, creating agendas, keeping notes, documenting action items, and accountability tracking.

Post-Milestone Meetings A Post-Milestone Meeting acknowledges significant completion of critical work. In conjunction with the Facilitator, the project team should determine whether Post-Milestone Meetings for multi-year, multi-phase, or projects with critical items of work or milestone dates will be conducted as part of the progress meetings, as a separate meeting, or as part of a regular Partnering update session. Standard:

ODOT C&MS 2013 108.02D (2010 SS 800 108.02D, if applicable). Facilitator Expectations:

• Allow ODOT and the Contractor to determine whether Post-Milestone Meetings will be part of the progress meetings, a separate meeting, or part of a regular Partnering update session.

If a Post-Milestone Meeting is held with the Partnering Facilitator:



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Consider discussing/updating items from the Initial Partnering Session or prior Partnering Update Session(s).

In coordination with ODOT and Contractor personnel, invite appropriate stakeholders.

Conduct a Partnering session that explores “best practices” and “lessons learned” associated with meeting the project Milestone(s).

Prepare summary-level minutes of the Post-Milestone Meeting.

General Follow-Through and Connection with Team

As the Partnering Facilitator, you offer a distinctive, high-level perspective of the project team dynamic. In addition, your experience with other project teams and your professional neutral role make you a unique and valuable resource. It is important that you stay connected to the project team

and, at a minimum, to the project team leaders to help them move forward together and succeed. Use your judgment and individual style to interject, coach, and advise as appropriate to help foster Partnering relationships, clarify and resolve issues, improve project team effectiveness, and ultimately guide the project team toward success. The Partnering Facilitator should also encourage

the project team to make course corrections as needed based on interim lessons learned, Partnering evaluation survey results, Facilitator recommendations, and follow-up Partnering session

agreements.


• Monitor on-going progress of the project and make recommendations to ODOT and Contractor personnel, as appropriate. Recommendations may include communications coaching, planning an executive Partnering session, using the issue and/or dispute resolution process, etc.

Post Construction Meeting with Partnering Close-Out Survey

At the end of the project, a Post Construction Meeting will be held. ODOT and OCA recommend that the Post Construction Meeting be professionally facilitated in order to explore and capture lessons learned from the project. The Post Construction Meeting Agenda can be found in Appendix B and the Partnering Close-Out Survey can be found at: http://www.dot.state.oh.us/Divisions/ConstructionMgt/Pages/Partnering.aspx

It is up to the project team to decide whether the Post Construction Meeting will be facilitated by the Partnering Facilitator. If it is, the following will apply: Standard:

• Make required submittals to ODOT personnel in the proper format and in a timely manner.

• Refer to ODOT C&MS 2013 108.02H (2010 SS 800 108.02H, if applicable) (Post Construction Meeting) and CM&S 2013 108.02I (2010 SS 800 108.02I, if applicable) (Partnering Close-Out Survey).




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• Have the project team complete the final Partnering evaluation to get participants’ feedback to improve the Partnering Process. The Partnering Close-Out Survey is located on the Division of Construction Management’s Partnering website: http://www.dot.state.oh.us/Divisions/ConstructionMgt/Pages/Partnering.aspx

• In coordination with ODOT and Contractor personnel, consider whether other stakeholders should be invited to attend.

• Hold the meeting prior to project finalization.

• Follow the CA-G-4 Post Construction Meeting Agenda/Minutes (Appendix B).

• Discuss with the project team things that did go well and that did not go well.

• Discuss with the project team which goals and objectives were achieved and which were not achieved, and why.

• Discuss and record “best practices” and “lessons learned” that can be used on future ODOT projects.

• Document and send a best practices/lessons learned report to the project team, managers, and executives.

Partnering Facilitator - Method of Payment

See Appendix C.

Partnering Facilitator Evaluations

Evaluations of your performance as a Partnering Facilitator will be made at the end of the Initial Partnering Session, at the first Quarterly Update Session, and at the Close-Out Partnering Session. The

ODOT Project Engineer and the Contractor Project Manager can ask for additional Partnering evaluations to be filled out from time to time. To maintain the integrity of these evaluations, the ODOT

Project Engineer will distribute and collect the evaluations and submit them to the Partnering

Coordinator in ODOT's central office. ODOT will provide the Facilitator with the evaluations after all forms have been completed by the entire project team. Copies of evaluation forms CA-G-6, CA-G-7 and CA-G-8 are included in Appendix B.




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Appendix A—ODOT Reference Materials

General Information/Partnering Information The ODOT Division of Construction Management website offers links to a variety of useful information regarding policies, procedures, and staff guidance. Of particular interest to Facilitators will be the latest online Construction and Material Specifications book, supplemental specifications, and proposal notes. This information can be accessed at: http://www.dot.state.oh.us/Divisions/ConstructionMgt/Pages/default.aspx. The ODOT “Construction Partnering” webpage is located at:


It provides a menu of links that will help you learn more about various ODOT functions. From here,

the Partnering Link will also allow you to access the Partnering Monitoring Survey and the Partnering Close-Out Survey.

Mitigation and Notice

Mitigation and Notice allows for issue resolution at the lowest possible levels of the project. Mitigation of any issue, whether caused by ODOT, the Contractor, a third party, or an intervening event, is a

shared contract and legal requirement under the ODOT CMS. It is important for the Partnering Facilitator to be familiar with the project’s notice requirements, mitigation responsibilities and efforts,

and the dispute resolution process in order to assist the team to avoid and resolve potential claims. However, as noted earlier, the Facilitator is in no way to act as or in place of a DRB/DRA, if there is one appointed on the project.

Standards:

• Refer to ODOT C&MS 2013 108.02F (2010 SS 800 108.02F, if applicable).


• Create an environment in which ODOT and Contractor personnel will explore and discuss potential mitigation and claims avoidance efforts in a timely manner.

• Know that both parties must still notify and adhere to C&MS 2013 108.02G (2010 SS 800 108.02G, if applicable) requirements, including that documentation is a necessity to record events and circumstances, and that tracking does not constitute acknowledgement of accepting responsibility for payment.

• Advise the project team to not ignore contentious issues, but to talk about and try to resolve them, using Partnering tools as needed.

Dispute Resolution and Administrative Claims Process ODOT, as a general policy, takes a proactive approach that seeks to avoid disputes and claims. In the event a dispute does arise, however, an orderly procedure is in place to assist with its resolution. This

http://www.dot.state.oh.us/Divisions/ConstructionMgt/Pages/default.aspx




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process itself can be considered a Partnering tool as the dispute resolution process is another means to avoid and resolve potential and actual claims. ODOT has a three-step dispute resolution and administrative claims process: Step 1 is a written on-site (project level) determination. Step 2 is a district level determination by a District Dispute Resolution Committee. Step 3 is a central office level determination, using either a Director’s Claim Board or a DRB/DRA. Again, if requested, it is the responsibility of the Partnering Facilitator to assist both parties in the process to avoid and resolve disputes and claims, but not to act in lieu of or as a member of the DRB/or a DRA. Standards:

Understand and discuss with ODOT and the contractor the three steps of the Dispute Resolution and Administrative Claims Process according to C&MS 2013 108.02G (2010 SS 800 108.02G, if applicable).

Understand the structure and purpose of the Dispute Resolution Board/Advisor processes. Facilitator Expectations:

• Encourage the project team to use Partnering tools and techniques in dispute avoidance and resolution before or during the Dispute Resolution and Administrative Claims Processes as per C&MS 2013 108.02G (2010 SS 800 108.02G, if applicable).

• Discuss with the project team that it should consider whether an issue should be taken “off project,” for example technical/engineering issues where additional help may be required. Assist the project team in documenting any associated process, timing, criteria to be met that the team agrees upon.



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Appendix B—Agendas/Forms

Initial Partnering Session Agenda/Minutes

Project XXXX (XX)

County-Route-Section

[Month Day, Year]

I. Welcome and Introductions/Project Status Report

II. Identify Roles of Stakeholders

III. Statewide and Project-Specific Goals and Objectives

Statewide Goals

• Build projects that are safe for the workforce and the travelling public • Build important projects that last and serve the public interest • Build projects that are completed on time and on budget • Treat the environment with respect in all our projects • Resolve issues on projects respectfully, timely and without litigation whenever possible • Strive to resolve issues at the level closest to the project consistent with levels of authority • Seriously consider all alternative viewpoints on a project • Partner with all stakeholders including the public, local governments, utilities and other

transportation modes • Trust and respect each other and all the partners on the project • Focus on the Project first with attitudes of success and fairness • Commit to responsibly mitigate the impact of issues as they arise • Manage our projects so that they are fully transparent and meet all real and perceived legal

standards • Build quality projects that we’re proud of • Communicate openly and effectively • Empower our people to use and enforce these principles

Project-specific Goals and Objectives

[To be determined at the partnering session]

IV. Breakout Group Exercise (Mitigation/Enhancement Strategies)

Project Challenges/Mitigation Strategies



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For example, Schedule

Project Enhancements (“Stretch Goals”)/Enhancement Strategies

For example, VECPs

V. Breakout Group Exercise (Project Specific Objectives with Action Plans)

What Who When

VI. Communication and Decision Making Protocols

VII. Issue Identification and Dispute Resolution Process

VIII. Partnering Follow Up Plan

IX. Session Evaluation



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Initial Partnering Session Sign-In Sheet Project XXXX (XX)

County-Route-Section

[Month Day, Year]

Name Company Phone Signature Email _____________________________________________________________________________________

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Appendix C—Partnering Facilitator Payment Requirements

Excerpts from PN 111:

E. Compensation. 1. Submission for Compensation. The facilitator shall submit to the Contractor actual

invoice costs. 2. Facilitator Compensation. After review and verification by the Contractor and

Department of the facilitator’s submission for compensation, the Contractor shall pay the facilitator the fees earned.

3. Contractor Reimbursement. The Department and the Contractor shall bear the costs

and expenses of the facilitator and venue equally. The facilitator chosen by the Department and the Contractor shall be compensated at a maximum rate of $3,500 for the Initial Partnering Session. The facilitator shall be compensated at a maximum rate of $1,500 for the Partnering Update Sessions. The maximum session rates above shall be considered full compensation for venue cost, on-site time, travel expenses, transportation, lodging, and incidentals, or portion thereof that the facilitator is at an authorized meeting. F. Basis of Payment. The Department will furnish the following item with an amount in the Proposal: Item Unit Description Special Lump Sum Department’s Share Facilitated Partnering Costs The fixed amount shown in the Proposal is included in the Total Bid Amount. This fixed amount is fifty percent of the Department’s estimate of the total cost of all Partnering Update Sessions and facilitator expenses. The payments due will be deducted from the item. If the Department’s costs of the Facilitated Partnering item exceed the fixed amount, the Department will continue to pay its share of the actual invoice costs of the item by processing a change order.

The Department will not pay a percent mark-up on these costs. The Department will make partial payments according to C&MS 109.09. This item is exempt from the non-performance table found in C&MS 104.02.



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Facilitator Notes:

ODOT includes within the Contract an established fixed bid item amount for ½ of the estimated cost for

Facilitated Partnering. This amount represents ODOT’s expected share. The Contractor is required to

cover the remaining ½ payment. If the Contractor and ODOT agree additional Partnering Sessions are

needed throughout the project and the cost will exceed the original estimated amount, ODOT will

encumber more funds to cover its ½ of the additional cost. The Contractor remains obligated to pay the

remaining ½ share.

The Facilitator will be receiving payments through the Contractor, not directly from ODOT. The

Facilitator should coordinate with the Contractor to determine to whom the facilitated session cost

payment request is to be addressed. The Contractor will review the submitted cost invoices once

submitted and will co-ordinate with ODOT on the validity of the invoices.

After approval, ODOT will make payment to the Contractor. ODOT is required to make, at a minimum, 1

payment to the Contractor per month if work is progressing. As a practice, ODOT makes estimated

payments to the Contractor every two weeks. ODOT will make the payment at the completion of the

Partnering sessions regardless of the actual status of work on the Project.

After receiving payment from ODOT, the Contractor is required to issue payment to the Facilitator. Due

to processing timeframes, there is a possibility that payments may take several weeks before the

Facilitator receives payment.

Please note that the presumption is that the project will hold the Partnering session at a no-cost venue

(for example, the project field office or an ODOT District Office). However, if a no cost facility is

unavailable, the venue is to be paid out of the maximum amounts per session.

Typically, a nominally itemized breakdown of invoiced charges should be sufficient for backup for

payment. At a minimum, this should include the invoiced/agreed cost to facilitate the meeting and the

cost (if any) of the venue. Note that expenses exceeding Maximum Rates will not increase payment

above the Maximum Rates.

The last paragraph in the Section F of the Basis of Payment in PN 111 pertains to Contractor Markups.

The Facilitators will be paid the invoiced prices without profit markups going to the Contractor.



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Appendix D—Partnering Specifications, Proposal Notes and Partnering Concepts

STATE OF OHIO DEPARTMENT OF TRANSPORTATION

2013 Construction and Material Specifications 108.02 Partnering

108.02 Partnering. It is the intent of the Department to partner every project. The purpose of Partnering is to develop a proactive effort and spirit of trust, respect, and cooperation among all stakeholders in a project. Partnering does not affect the terms and conditions of the Contract. The Partnering process in this section is Self-facilitated Partnering performed by the Project personnel. Costs associated with the Self-facilitated Partnering process are incidental to the Contract.

A. Preconstruction Meeting. Meet with the Engineer for a Preconstruction Meeting before beginning the Work. At or before the meeting, submit the initial progress schedule to the DCA. Prepare the schedule according to 108.03.

Furnish a list of proposed subcontractors and material suppliers at or before the Preconstruction Meeting. If the Contractor fails to provide the required submissions at or before the Preconstruction Meeting, the Engineer may order the meeting suspended until they are furnished. Do not begin the Work until the meeting is reconvened and concluded or the Engineer gives specific written permission to proceed.

B. Initial Partnering Session. In conjunction with the Engineer, determine whether the Initial Partnering Session will be conducted as part of the Preconstruction Meeting or as a separate meeting. Partnering shall have its own agenda with specific time set aside to develop the necessary partnering protocols. Develop the Partnering agenda with the Engineer.

Identify and invite all stakeholders necessary to make the Project successful including utility companies, other transportation entities (i.e., railroads), community leaders, all Project participants including subcontractors.

During the Initial Partnering Session, consider developing Partnering teams consisting of Department and Contractor senior personnel and Project personnel. Consider the following items for discussion:

1. Identifying and developing a consensus on project goals consistent with the contractual obligations, including specific goals concerning safety, quality, schedule, and budget.

2. Deciding how the teams will measure progress on Project goals.

3. Identifying any potential risks to the Project’s success, mitigation strategies and an implementation plan for the appropriate strategies.

4. Defining key issues, project concerns, joint expectations, roles of key partnership leaders, lines of decision making authority, and share relevant information to help determine the scope of the Partnering efforts.

5. Identifying any opportunities for project enhancement, enhancement strategies and a specific action plan for implementing strategies.



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6. Developing a communication protocol to enhance communication on the Project

7. Developing an issue identification and resolution process that identifies and attempts to resolve issues at the level closest to the work. The issue identification and resolution process will develop all the necessary steps for issue elevation including Notice and Mitigation defined in 108.02.F and the Dispute Resolution and Administrative Claims Process defined in 108.02.G.

C. Progress Meetings. Hold monthly Progress Meetings unless the frequency is otherwise determined at the Preconstruction Meeting. Coordinate with the Engineer to determine agenda topics prior to each meeting. The purpose of Progress Meetings is to keep open communication between the Contractor and the Engineer. The senior personnel team is encouraged to participate in all Progress Meetings. Include Partnering as an agenda item at the Progress Meetings.

D. Post-milestone Meeting. In conjunction with the Engineer, determine whether the Post-milestone Meeting will be conducted as part of the Progress Meeting or as a separate meeting for multi-year, multi-phase, or projects with critical items of work or milestone dates. Consider discussing and updating items from the Initial Partnering Session in addition to items specific to the Project. All stakeholders should be invited to attend.

E. Partnering Monitoring. Monitor the progress of the Partnering relationship based on the goals decided during the Initial Partnering Session. On-line surveys of Project participants may be used to monitor progress on Project goals and help identify issues as they arise. The on-line surveys are consistent with the Department’s Partnering Project Rating Form which is located on the Division of Construction Management’s Partnering website:


F. Mitigation and Notice. Mitigation of any issue, whether caused by the Department, Contractor, third-party or an intervening event, is a shared contract and legal requirement. Mitigation efforts include, but are not limited to, re-sequencing work activities, acceleration, and substitution of materials. The Contractor and Engineer must explore and discuss potential mitigation efforts in a timely manner.

1. Contractor Initial Oral Notification. Provide immediate oral notification to the Engineer upon discovering a circumstance that may require a revision to the Contract Documents or may result in a dispute. Upon notification, the Engineer will attempt to resolve the identified issue as quickly as possible.

2. Contractor Written Early Notice. If the Engineer has not resolved the identified issue within 2 working days after receipt of oral notification, provide written notice to the Engineer of any circumstance that may require a revision to the Contract Documents or may result in a dispute. This early notice must be given by the end of the second working day following the occurrence of the circumstance.

The Engineer and Contractor shall maintain records of labor, equipment, and materials used on the disputed work or made necessary by the circumstance. Such records will begin when early notice is received by the Engineer. Tracking such information is not an acknowledgement that the Department accepts responsibility for payment for this disputed work.

If an issue is not resolved through the initial mitigation efforts, either abandon or escalate to the Dispute and Administrative Claims Process defined in 108.02.G.

G. Dispute Resolution and Administrative Claims Process. Whenever an issue is elevated to a dispute, the parties shall exhaust the Department’s Dispute Resolution and Administrative Claim process as set forth below prior to filing an action in the Ohio Court of Claims. The following procedures do not compromise the Contractor’s right to seek relief in the Ohio Court of Claims.




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All parties to the dispute must adhere to the Dispute Resolution and Administrative Claim process. Do not contact Department personnel who are to be involved in a Step 2 or Step 3 review until a decision has been issued by the previous tier. Department personnel involved in Step 2 or Step 3 reviews will not consider a dispute until the previous tier has properly reviewed the dispute and issued a decision.

Failure to meet any of the timeframes outlined below or to request an extension may terminate further review of the dispute and may serve as a waiver of the Contractor’s right to file a claim.

Disputes and claims by subcontractors and suppliers may be pursued by the Contractor on behalf of subcontractors or suppliers. Disputes and claims by subcontractors and suppliers against the Department but not supported by the Contractor will not be reviewed by the Department. Disputes and claims of subcontractors and suppliers against the Contractor will not be reviewed by the Department.

Continue with all Work, including that which is in dispute. The Department will continue to pay for Work.

The Department will not make the adjustments allowed by 104.02.B, 104.02.C, and 104.02.D if the Contractor did not give notice as specified in 108.02.F.1 and 108.02.F.2. This provision does not apply to adjustments provided in Table 104.02-2.

1. Step 1 (On-Site Determination). The Engineer will meet with the Contractor’s superintendent within two (2) working days of receipt of the Contractor Written Early Notice set forth in 108.02.F.2. They will review all pertinent information and contract provisions and negotiate in an effort to reach a resolution according to the Contract Documents. The Engineer will issue a written decision of Step 1 within fourteen (14) calendar days of the meeting. If the dispute is not resolved either abandon or escalate the dispute to Step 2.

2. Step 2 (District Dispute Resolution Committee). Each District will establish a District Dispute Resolution Committee (DDRC) which will be responsible for hearing and deciding disputes at the Step 2 level. The DDRC will consist of the District Deputy Director, District Construction Administrator and the Planning and Engineering Administrator or designees (other than the project personnel involved).

Within seven (7) calendar days of receipt of the Step 1 decision, submit a written request for a Step 2 meeting to the District Construction Administrator (DCA). The DCA will assign the dispute a dispute number. Within fourteen (14) calendar days of receipt of the request for a Step 2 meeting, submit the Dispute Documentation as follows:

a) Submit three (3) complete copies of the documentation of the dispute to the DCA. b) Identify the Dispute on a cover page by county, project number, Contractor name,

subcontractor or supplier if involved in the dispute, and dispute number. c) Clearly identify each item for which additional compensation and/or time is requested. d) Provide a detailed narrative of the disputed work or project circumstance at issue. Include

the dates of the disputed work and the date of early notice. e) Reference the applicable provisions of the plans, specifications, proposal, or other

contract documents in dispute. Include copies of the cited provisions in the Dispute Documentation.

f) Include the dollar amount of additional compensation and length of contract time extension requested.

g) Include supporting documents for the requested compensation stated in number six (6) above.

h) Provide a detailed schedule analysis for any dispute involving additional contract time, actual or constructive acceleration, or delay damages. At a minimum, this schedule



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analysis must include the Schedule Update immediately preceding the occurrence of the circumstance alleged to have caused delay and must comply with accepted industry practices. Failure to submit the required schedule analysis will result in the denial of that portion of the Contractor’s request.

i) Include copies of relevant correspondence and other pertinent documents.

Within fourteen (14) calendar days of receipt of the Contractor’s Dispute Documentation the DDRC will conduct the Step 2 meeting with Contractor personnel who are authorized to resolve the dispute. The DDRC will issue a written decision of Step 2 within fourteen (14) calendar days of the meeting. If the dispute is not resolved, either abandon or escalate the dispute to Step 3.

3. Step 3 (Director’s Claims Board Hearing or Alternative Dispute Resolution). Submit a written Notice of Intent to File a Claim to the Dispute Resolution Coordinator in the Division of Construction Management within fourteen (14) calendar days of receipt of the Step 2 decision. Include the Contractor’s request for either: 1) a Director’s Claim Board hearing on the claim or 2) an acceptable Alternative Dispute Resolution (ADR) practice.

The dispute becomes a claim when the Dispute Resolution Coordinator receives the Notice of Intent to File a Claim.

a) Director’s Claims Board Hearing. The Director’s Claims Board (the Board) will consist of the Deputy Director of the Division of Construction Management, Deputy Director of Engineering and a District Construction Engineer from a district not involved in the claim or designees. A representative from the Division of Chief Legal Counsel and Equal Opportunity may be present to observe the hearing. The Director or designee will be responsible for deciding claims.

Submit six (6) complete copies of the Claim Documentation to the Dispute Resolution Coordinator within thirty (30) calendar days of receipt of the Notice of Intent to File a Claim. This timeframe may be extended upon mutual agreement of the parties and with approval of the Dispute Resolution Coordinator.

In addition to the documentation submitted at Step 2:

i. Enhance the narrative to include sufficient description and information to enable understanding by a third party who has no knowledge of the dispute or familiarity with the project.

ii. Certify the claim in writing and under oath using the following certification:

“I, (Name and Title of an Officer of the Contractor) certify that this claim is made in good faith, that all supporting data is accurate and complete to the best of my knowledge and belief, and that the claim amount accurately reflects the contract amendment for which (Contractor Company name) believes the Department is liable.”

Sign and date this claim certification and have the signature notarized pursuant to the laws of the State of Ohio. The date the Dispute Resolution Coordinator receives the certified claim documentation is the date of the Department’s Receipt of the Certified Claim for the purpose of the calculation of interest as defined in 108.02.G.4. The Dispute Resolution Coordinator will forward one (1) complete copy of this documentation to the District.

Within thirty (30) calendar days of the District’s receipt of the Contractor’s Claim Documentation, the District will submit six (6) complete copies of its Claim Documentation to the Dispute Resolution Coordinator. In the event that the Contractor is granted a time extension for the submission of its Claim



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Documentation, the District will be granted an equal time extension for submission of its Claim Documentation. At a minimum, the District’s Claim Documentation should include:

i. An overview of the project.

ii. A narrative of the disputed work or project circumstance at issue with sufficient description and information to enable understanding by a third party who has no knowledge of the dispute or familiarity with the project.

iii. The dates of the disputed work and the date of early notice.

iv. References to the applicable provisions of the plans, specifications, proposal, or other contract documents. Copies of the cited provisions shall be included in the claim document.

v. Response to each argument set forth by the Contractor.

vi. Any counterclaims, accompanied by supporting documentation, the District wishes to assert.

vii. Copies of relevant correspondence and other pertinent documents.

Within fourteen (14) calendar days of receipt of the District’s Claim Documentation, the Dispute Resolution Coordinator will forward one (1) complete copy to the Contractor and will schedule a hearing on the dispute.

Once a hearing date has been established, both the Contractor and District shall provide the Dispute Resolution Coordinator with a list of names of persons who may be presenting information at the hearing. Unless otherwise permitted by the Board, the exchange of documentation and all disclosures specified in this step of the process shall be completed at least fourteen (14) calendar days prior to the hearing.

Upon request or at the Board’s discretion, the Board may delay the hearing one (1) time to allow more time for review and requests for more documentation.

The Board will hear the entire claim on behalf of the Director. The Board may have technical advisors at the hearing for assistance in reviewing the claim. The Contractor and District will each be allowed adequate time to present their respective positions before the Board. The Contractor and District will also each be allowed adequate time for one (1) rebuttal limited to the scope of the opposing party’s presentation. The Contractor’s position will be presented by a Contractor’s representative who is thoroughly knowledgeable of the claim. Similarly, the District’s position will be presented by a District representative who is thoroughly knowledgeable of the claim. Each party may have others assist in the presentation.

The Board may, on its own initiative, request information of the Contractor in addition to that submitted for the hearing. If the Contractor fails to reasonably comply with such request, the Board may render its decision without such information.

Upon completion of the hearing and consideration of any additional information submitted upon request, the Board will submit a written recommendation on the disposition of the claim to the Director. The Director or designee will ratify, modify, or reject the recommendation of the Board and render a decision within sixty (60) calendar days of the hearing. Within thirty (30) calendar days of receipt of the Board’s decision, either accept or reject the decision in writing. In the event the Contractor fails to do so, the Board may revoke any offers of settlement contained in the decision.



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The decision of the Director is the final step of the Department’s Dispute Resolution Process and may not be appealed within the Department. The Director is not bound by any offers of settlement or findings of entitlement made during Steps 1 and 2 of the Dispute Resolution Process.

b) Alternative Dispute Resolution (ADR). In lieu of the Board hearing, the Contractor may opt to proceed through an Alternative Dispute Resolution (ADR) Process. The Department will then choose either binding arbitration as defined by ORC 5525.23 or mediation in the manner in which those methods are practiced by the Department and allowed by law.

The Dispute Resolution Coordinator will coordinate the agreement of the parties to the ADR method, and the selection of a neutral third party or technical expert. The fees of the neutral third party or technical expert will be shared equally between the Department and the Contractor. The Dispute Resolution Coordinator will obtain a written agreement, signed by both parties, that establishes the ADR process. The neutral third party or technical expert will have complete control of the claim upon execution of the ADR agreement.

4. Interest on Claims. The Department will pay interest in accordance with ORC Section 5703.47 on any amount found due on a claim which is not paid within 30 days of the Dispute Resolution Coordinator's Receipt of the Certified Claim.

H. Post Construction Meeting. The District will conduct a Post Construction Meeting with the Contractor prior to the project finalization. The District will invite the design agency and any other stakeholders deem necessary including utility companies, other transportation entities (i.e. railroads), community leaders, all Project participants including subcontractors performing critical work to attend this meeting.

Consider the following items for discussion:

1. Project Safety.

2. How were the goals evaluated or measured?

3. How were foremen/ workers involved in the Partnering process?

4. How were the subcontractors involved in the Partnering process?

5. How were relationships with key stakeholders managed?

6. Teambuilding activities or unique motivational activities.

I. Partnering Close-Out Survey. Complete the final Partnering evaluation to get participants’ feedback and improve the Partnering process. The Partnering Close-Out Survey is located on the Division of Construction Management’s Partnering website:





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PROPOSAL NOTE 111

FACILITATED PARTNERIING

DATED 07-20-2012

A. Facilitated Partnering. The type of Partnering required on this project is Facilitated Partnering. The requirements of this note replace the Self-facilitated Partnering requirements in 108.02.B and 108.02.E of the Construction & Material Specifications. Select, with input from the Engineer, a partnering facilitator from the ODOT prequalified list located on the Division of Construction Management’s Partnering website:

http://www.dot.state.oh.us/Divisions/ConstructionMgt/Pages/Partnering.aspx B. Initial Partnering Session. Every attempt shall be made to hold an Initial Partnering Session prior to beginning the Work and separately from the Preconstruction Meeting. This session shall be no later than one month after the Preconstruction Meeting. Identify and invite all stakeholders necessary to make the project successful including utility companies, other transportation entities (i.e., railroads), community leaders, all project participants including subcontractors. Develop the Partnering agenda with the Engineer and facilitator before holding the Initial Partnering Session. During the Initial Partnering Session:

1. Develop Partnering teams consisting of Department and Contractor senior personnel and Project personnel.

2. Identify and develop a consensus on project goals consistent with the contractual obligations, including specific goals concerning safety, quality, schedule, and budget.

3. Decide on how the teams will measure progress on project goals. 4. Identify any potential risks to the project’s success, mitigation strategies and an

implementation plan for appropriate strategies. 5. Define key issues, project concerns, joint expectations, roles of key partnership leaders,

lines of decision-making authority, and share relevant information to help determine the scope of the Partnering efforts.

6. Identify any opportunities for project enhancement, enhancement strategies, and a specific action plan for implementing strategies.

7. Develop a communication protocol to enhance communication on the project. 8. Develop an issue identification and resolution process that identifies and attempts to

resolve issues at the level closest to the work. The issue identification and resolution process will develop all the necessary steps for issue elevation including Notice and Mitigation defined in 108.02.F and the Dispute Resolution and Administrative Claims Process defined in 108.02.G.

C. Partnering Update Sessions. Hold quarterly Partnering Update Sessions, unless the frequency is otherwise determined by the Engineer and Contractor, to maintain open communication and evaluate the Partnering relationship on the Project. Identify Partnering successes and possible areas of improvement. Identify and invite all stakeholders necessary to make the session successful including utility companies, other transportation entities (i.e., railroads), community leaders, all project participants including subcontractors.




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D. Partnering Monitoring. Monitor the progress of the Partnering relationship based on the goals decided during the Initial Partnering Session. On-line surveys of project participants will be used to monitor goals progress and help identify issues as they arise. Complete the survey prior to every Partnering Update Session and determine with the Engineer and facilitator whether more frequent evaluations are necessary. The on-line surveys will be consistent with the Department’s Partnering Project Rating Form which is located on the Division of Construction Management’s Partnering website:

http://www.dot.state.oh.us/Divisions/ConstructionMgt/Pages/Partnering.aspx E. Compensation.

1. Submission for Compensation. The facilitator shall submit to the Contractor actual

invoice costs. 2. Facilitator Compensation. After review and verification by the Contractor and

Department of the facilitator’s submission for compensation, the Contractor shall pay the facilitator the fees earned.

3. Contractor Reimbursement. The Department and the Contractor shall bear the costs

and expenses of the facilitator and venue equally. The facilitator chosen by the Department and the Contractor shall be compensated at a maximum rate of $3,500 for the Initial Partnering Session. The facilitator shall be compensated at a maximum rate of $1,500 for the Partnering Update Sessions. The maximum session rates above shall be considered full compensation for venue cost, on-site time, travel expenses, transportation, lodging, and incidentals, or portion thereof that the facilitator is at an authorized meeting. F. Basis of Payment. The Department will furnish the following item with an amount in the Proposal: Item Unit Description Special Lump Sum Department’s Share Facilitated Partnering Costs The fixed amount shown in the Proposal is included in the Total Bid Amount. This fixed amount is fifty percent of the Department’s estimate of the total cost of all Partnering Update Sessions and facilitator expenses The payments due will be deducted from the item. If the Department’s costs of the Facilitated Partnering item exceed the fixed amount, the Department will continue to pay its share of the actual invoice costs of the item by processing a change order.

The Department will not pay a percent mark-up on these costs. The Department will make partial payments according to C&MS 109.09. This item is exempt from the non-performance table found in C&MS 104.02.




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PN 108 – 10/19/2012 DISPUTE RESOLUTION BOARD PROCESS

The Department’s Dispute Resolution Board Process is based upon the partnering approach to

construction administration and must be followed by the Contractor in order to resolve disputes on the

project.

Purpose

The purpose of the Dispute Resolution Board (DRB) is to provide special expertise to assist in and

facilitate the timely and equitable resolution of disputes and claims. The goal is to avoid delays to the

contract work, minimize the expense of settlement, avoid litigation, and promote project partnering.

The DRB will render non-binding recommendations on issues brought before them.

DRB Membership

The DRB will consist of three members. One member is selected by the Department and approved by

the Contractor and one member is selected by the Contractor and approved by the Department. These

first two members will mutually select and agree on the third member who will complement the

construction and contract administration experience of the first two members and act as the Chair for

all DRB activities. All three members must meet the “Requirements of DRB Members” set forth below.

Requirements of DRB Members

Members of the DRB shall have at least ten years of experience with the type of construction involved

on this project, construction contract administration principles, and dispute resolution training.

Members of the DRB must not show or be perceived as showing partiality to either the Contractor or the

Department. A DRB member shall not have any conflict of interest which could affect their ability to act

in a disinterested and unbiased manner.

A person proposed as a member of the DRB shall submit a resume covering his/her applicable education

and experience to the party appointing him/her. The resume shall include a list of all DRBs on which

he/she currently serves and any projects on which he/she serves as a Dispute Resolution Advisor (DRA)

along with meeting frequencies. A disclosure statement shall be submitted and include, but not limited

by, any of the following categories of relationships or prior involvement in this project:

A. Any direct or indirect ownership or financial interest in the Contractor, consultant or consulting firm on the project, subcontractor or supplier on the project or any business of another DRB member.

B. Current employment by the Department, the Contractor, a consultant or consulting firm on the project, subcontractor or supplier on the project.

C. Within the one year period immediately prior to award of the contract: employment by the Department or the Contractor, a consultant or consulting firm on the project, any subcontractor or supplier on the project or any business of another DRB member.

D. A close personal relationship with any key individual in any firm involved in the contract.



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E. A prior involvement in the project of a nature, which might be construed as compromising his/her ability to act impartially in carrying out the duties of the DRB.

F. A contract as a consultant to the Department or the Contractor or any subcontractor or supplier on the project.

Category “A” and “B” relationships listed above shall disqualify a person from serving on the DRB for this

project. The other categories listed above will be considered by the Department and the Contractor in

arriving at their decision as to whether or not to accept a person as a member of the DRB. If a

prospective DRB member discloses a relationship or prior involvement in this project listed in other than

category “A” and “B” and is considered to be highly qualified and desirable as a DRB member, the

Department and the Contractor may, by mutual agreement, approve that person to serve as a member

on the DRB.

If a person submits a disclosure statement which fails to provide accurate and complete disclosure of a

relationship described in A through F above the Department may disqualify that person from serving as

a DRA or on a DRB on future Department projects.

Service as a member of other DRBs, as a DRA or as an arbitrator or mediator shall not be construed as

employment and therefore will not preclude a person from membership on the DRB for this project.

DRB Establishment

Every attempt shall be made by the Department and the Contractor to complete the selection of DRB

members and execute the “Dispute Resolution Board Three-Party Agreement” prior to the date of the

preconstruction conference. At a minimum, the following timeframes for establishment of the DRB

must be followed.

Within twenty-one (21) calendar days of the signing of the contract, both the Department and

Contractor shall each obtain a written commitment from their proposed member to serve as a DRB

member along with the resume and disclosure statement. These commitments shall include a clause

that requires the first two members to immediately pursue selection of the Chair. Within this same

timeframe, the Department and Contractor must also give the other party notice of the person they

have selected to serve as a DRB member. This notice shall be accompanied by the resume and

disclosure statement.

Within fourteen (14) calendar days of receiving the notice of selection of a DRB member, the

Department and the Contractor shall notify the other party in writing as to whether or not the person

selected is acceptable. Failure to give this notice within the required timeframe shall be construed to be

acceptance of that member.

If a person selected is not acceptable to the other party, the party who selected that person shall within

seven (7) calendar days select another person and provide to the other party a notification accompanied

by the resume and disclosure statement submitted by that person. Within seven (7) calendar days



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written notification shall be given as to whether or not the person selected is acceptable. Failure to give

this notice within the required timeframe shall be construed to be acceptance of that member.

Once the Department and the Contractor have agreed upon the first two members of the DRB they shall

immediately notify those members of their approval. Within seven (7) calendar days of this notification,

the Department and Contractor will each provide the first two members with a list of not less than two

(2) potential members from which the Chair will be selected. Within seven (7) calendar days of receipt

of the list of potential members, the first two members shall select the Chair ensuring that the Chair

meets all the “Requirements of DRB Members” set forth above and give written notice to both the

Department and Contractor accompanied by that person’s resume and disclosure statement. In the

event of an impasse in selection of the Chair, that member shall be selected by mutual agreement of the

Department and Contractor.

Immediately after agreement is reached on all members of the DRB, the Department, Contractor, and

the members of the DRB shall execute the “Dispute Resolution Board Three Party Agreement” as

provided at the end of this proposal note. The execution of this agreement will not modify the

requirements, terms, or conditions of the contract.

DRB Member Termination

If during the life of the contract, a DRB member’s status changes in regards to category “A” or “B”

categories set forth in the “Requirements for DRB Members” above he/she shall immediately disclose

this in writing to both the Department and the Contractor. Upon receiving such notification, the

Department or the Contractor may, within seven (7) calendar days, give notice that this DRB member is

no longer acceptable. In no event, shall a DRB member participate in a hearing of a dispute or claim

involving a firm by which he/she is employed.

Service of a member of the DRB may be terminated at any time with not less than thirty (30) calendar

days notice as follows:

A. The Department may terminate the service of the Department appointed member.

B. The Contractor may terminate the service of the Contractor appointed member.

C. The Chair’s service may be terminated only by agreement of the other two members.

D. Resignation of the member.

DRB Member Replacement

In the event that a vacancy on the DRB occurs, replacement members will be appointed in the same

manner as the replaced member was appointed. The selection of a replacement DRB member shall be

completed within thirty (30) days of the creation of the vacancy. The “Dispute Resolution Board Three

Party Agreement” shall be amended to reflect the change of a DRB member.



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DRB Operation and Duties

The DRB, with input from the Department and the Contractor, will establish its Operating Procedures for

Dispute Resolution by adopting the “Dispute Resolution Board (DRB) Operating Procedures for Dispute

Resolution” which can be found on ODOT’s website at

http://www.dot.state.oh.us/CONTRACT/construction_policy.htm. These procedures may be tailored to

each individual project.

The members of the DRB will keep current on the progress of this project by: 1) quarterly visits to the

project, 2) keeping current files, 3) meetings with other DRB members, and 4) joint meetings with

Department and Contractor personnel. The frequency of project visits and meetings and content of

members’ files shall be as agreed upon among the Department, the Contractor, and members of the

DRB.

The Chair shall be responsible for arranging and conducting meetings, hearings, mediation sessions,

project visits, and drafting DRB recommendations on claims presented to the DRB.

The DRB will not maintain an official transcript of its hearings or deliberations. The DRB members shall

perform their responsibilities impartially and independently considering the facts and conditions related

to the matters under consideration and the provisions of the contract.

Should the Department and the Contractor mutually agree to terminate a “Dispute Resolution Board

Three Party Agreement,” the existing “Resolution Review Board Three Party Agreement” will remain in

force until replaced by another fully executed “Dispute Resolution Board Three Party Agreement.”

The DRB will exist for the life of this project only and will not review disputes or claims on any other

project unless as otherwise agreed upon by the Department and the Contractor. If, after the

Department has made final acceptance of the project, there are unresolved disputes and claims

remaining, the “Dispute Resolution Board Three Party Agreement” shall remain active and in full force

and effect until the project is otherwise administratively closed by the Department following final

payment so that the DRB may continue in operation until all unresolved disputes and claims are

resolved.

Disputes and Claims

Disputes include disagreements, matters in question, and differences of opinion between the

Department’s personnel and the Contractor. Claims are disputes that are not settled through Steps 1

and 2 of the Dispute Resolution Board Process

Disputes and claims by subcontractors and suppliers may be pursued by the Contractor on behalf of

subcontractors or suppliers. Disputes and claims by subcontractors and suppliers against the Contractor

will not be reviewed by the Department or DRB. Disputes and claims by subcontractors and suppliers

against the Department but not supported by the Contractor will not be reviewed by the Department or

the DRB.



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Process

Whenever an issue is elevated to a dispute, the parties shall exhaust the Dispute Resolution Board

Process as set forth below prior to filing an action in the Ohio Court of Claims. The following procedures

do not compromise the Contractor’s right to seek relief in the Ohio Court of Claims.

Failure to meet any of the timeframes outlined below or to request an extension may terminate further

review of the dispute and may serve as a waiver of the Contractor’s right to file a claim.

Continuation of Work.


Step 1 (On-Site Determination).

The Engineer will meet with the Contractor’s superintendent within two (2) working days of receipt of

the Contractor’s Written Early Notice set forth in 108.02.F.2. They will review all pertinent information

and contract provisions and negotiate in an effort to reach a resolution according to the Contract

Documents. The Engineer will issue a written decision of Step 1 within fourteen (14) calendar days of

the meeting. If the dispute is not resolved, either abandon or escalate the dispute to Step 2.

Step 2 (District Dispute Resolution Committee).

Within seven (7) calendar days of receipt of the Step 1 decision submit a written request for a Step 2

meeting to the District Construction Administrator (DCA). The DCA will assign the dispute a dispute

number. The dispute number will consist of the District number, followed by a hyphen, the project

number, followed by a hyphen and then the number of disputes on this project that this dispute

represents. Within fourteen (14) calendar days of receipt of the request for a Step 2 meeting, the

Contractor shall submit the Dispute Documentation as follows:

1. Submit three (3) complete copies of the documentation of the dispute to the DCA. 2. Identify the dispute on a cover page by county, project number, Contractor name,

subcontractor or supplier if involved in the dispute, and dispute number. 3. Clearly identify each item for which additional compensation and time extension

requested. 4. Provide a detailed narrative of the disputed work or project circumstance at issue. 5. Include the dates of the disputed work and the date of early notice. 6. Reference the applicable provisions of the plans, specifications, proposal, or other

contract documents in dispute. Include copies of the cited provisions in the Dispute Documentation.

7. Include the dollar amount of additional compensation and length of contract time extension being requested.

8. Supporting documents for the requested compensation stated in number six (6) above. 9. Provide a detailed schedule analysis for any dispute concerning additional contract time,

actual or constructive acceleration, or delay damages. At a minimum, the schedule



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analysis must include the Schedule Update immediately preceding the occurrence of the circumstance alleged to have caused delay and must comport with accepted industry practices. Failure to submit the required schedule analysis will result in the denial of that portion of the Contractor’s request.

10. Include copies of relevant correspondence and other pertinent documents.

Each District will establish a District Dispute Resolution Committee (DDRC) which will be responsible for

hearing and deciding disputes at the Step 2 level. The DDRC will consist of the District Deputy Director,

District Construction Administrator and the Planning & Engineering Administrator or designees (other

than the project personnel involved).

To prepare for the DDRC meeting, the DCA will create a file on the dispute and assign a person to review

and manage the dispute. This manager will advise the Dispute Resolution Coordinator in the Division of

Construction Management on the status of the dispute.

Within fourteen (14) calendar days of receipt of the Contractor’s Dispute Documentation the DDRC will

meet with Contractor personnel authorized to resolve the dispute. The DDRC will issue a written

decision of Step 2 within fourteen (14) calendar days of the meeting. If the dispute is not resolved

either abandon or appeal to the DRB as outlined below.

The Department’s and Contractor’s personnel shall not contact the DRB until a decision has been issued

by the DDRC.

Step 3 (Appeal to DRB).

Within fourteen (14) calendar days of receipt of the Step 2 decision, the Contractor must submit a

written Notice of Intent to Appeal to the DRB to the Chair of the DRB. This notice shall state the

Contractor’s request for a DRB hearing. The Contractor must also submit copies of this notice to the

DCA and Deputy Director of the Division of Construction Management.

The dispute becomes a claim when the Chair of the DRB receives the Notice of Intent to Appeal to the

DRB. The DRB will not consider a claim until the DDRC has properly reviewed the dispute and issued a

decision.

The Operating Procedures for Dispute Resolution established by the DRB will set forth the Step 3

(Appeal to DRB) process in detail. At a minimum, these procedures will establish both the requirements

and timeframes for documentation submissions by both the Contractor and Department,

documentation exchange between the Contractor and Department, and the hearing procedures.

The Contractor shall submit its Claim Documentation in accordance with the DRB’s Operating

Procedures for Dispute Resolution. In addition to the documentation submitted at Step 2, the narrative

shall be enhanced to include sufficient description and information to enable understanding by a third

party who has no knowledge of the dispute or familiarity with the project. This documentation must



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also include a discussion of the efforts taken to partner the dispute. The DRB may also require

additional information be included in the Contractor’s Claim Documentation.

Certify the claim in writing and under oath using the following certification:

I, (Name and Title of an Officer of the Contractor) certify that this claim is made in good faith,

that all supporting data is accurate and complete to the best of my knowledge and belief, and

that the claim amount accurately reflects the contract amendment for which ( Contractor

Company name) believes the Department is liable.

(The Contractor)

By: ____________________

(Name and Title)

Date of Execution: ________

Sign and date this claim certification and have the signature notarized pursuant to the laws of the State

of Ohio. The date the DRB Chair receives the certified claim documentation is the date of the

Department’s Receipt of the Certified Claim for the purpose of the calculation of interest as defined in

108.02.G.4.

In accordance with the DRB’s Operating Procedures for Dispute Resolution, the District will be instructed

to submit its Claim Documentation in response to the Contractor’s Claim Documentation. At a

minimum, the District’s Claim Documentation must include:

1. An overview of the project. 2. A narrative of the disputed work or project circumstance at issue with sufficient

description and information to enable understanding by a third party who has no knowledge of the dispute or familiarity with the project.

3. The dates of the disputed work and the date of early notice. 4. Discuss the efforts taken to partner the dispute. 5. References to the applicable provisions of the plans, specifications, proposal, or other

contract documents. Copies of the cited provisions shall be included in the claim document.

6. Response to each argument set forth by the Contractor. 7. Any counterclaims, accompanied by supporting documentation, the District wishes to

assert. 8. Copies of relevant correspondence and other pertinent documents.

The DRB may also require additional information be included in the District’s Claim Documentation.

In the event of multiple claims, the DRB may order that they be considered in a single hearing. The DRB

may hold this hearing after the completion of the project or until such time that it is assured that all

disputes on the project have been processed through Steps 1 and 2 of the Dispute Resolution Board

Process and these issues are before the DRB.



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The DRB will hear the entire claim. The DRB will hear oral presentations from both sides. The DRB may,

on its own initiative, request information of the Contractor or the Department in addition to that

submitted for the hearing. If either party fails to reasonably comply with such request, the DRB may

render its recommendation without such information.

Upon completion of the hearing and consideration of any additional information submitted upon

request, the DRB will render its written recommendation within fourteen (14) calendar days of the

hearing.

The recommendation of the DRB shall be by majority vote. The recommendation shall be a well-

reasoned decision which, at a minimum, shall include:

1. The claim number; the project number; county, route and section number; Contractor name; subcontractor or supplier’s name, if involved in the dispute; and the commonly referenced name of the dispute on the cover sheet or the first page of the decision.

2. Sufficient description of the project and the claim to enable understanding by a third party who has no knowledge of the claim or familiarity with the project.

3. The value of the claim as determined by the Contractor, if applicable. 4. The value of the claim as determined by the Department, if applicable. 5. Finding of fact and a conclusion that provides clear direction to the parties.

The Chair must submit copies of the recommendation to the Contractor, DCA and Deputy Director of the

Division of Construction Management

Within three (3) days of receipt of the recommendation, either party may request a meeting of the DRB

to hear the DRB’s explanation of the recommendation. Within seven (7) days of this request, the Chair

shall conduct this meeting with both the Department and the Contractor.

Within twenty-one (21) calendar days of receipt of the recommendation, the Contractor must indicate

its intentions in writing to the Department and the Chair in regards to the recommendation.

Simultaneously, the Director or designee will determine the Department’s intentions in regards to the

recommendation. This determination will be issued in writing to the Contractor and the Chair within

twenty-one (21) calendar days of receipt of the recommendation.

Either the Department or the Contractor may appeal a recommendation to the DRB for reconsideration.

However, reconsideration will only be allowed when there is new evidence to present.

The recommendation of the DRB is the final step of the Department’s Dispute Resolution Board Process

and may not be appealed within the Department. The DRB is not bound by any offers of settlement or

findings of entitlement made during Steps 1 and 2 of the Dispute Resolution Board Process.

Interest on Claims.

The Department will pay interest in accordance with ORC Section 5703.47 on any amount found due on

a claim which is not paid within 30 days of the Claims Coordinator's Receipt of the Certified Claim.



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Binding Arbitration (Optional).

In lieu of the DRB hearing the Contractor may request that the claim proceed through binding

arbitration. The Department may agree to binding arbitration as defined by ORC 5525.23 in the manner

in which this method is practiced by the Department and allowed by law. At its discretion, the

Department may decline the Contractor’s request.

ODOT’s Dispute Resolution Coordinator will coordinate the agreement of the parties to the binding

arbitration method and the selection of a neutral third party or technical expert. The fees of the neutral

third party or technical expert will be shared equally. The Dispute Resolution Coordinator will obtain a

written agreement, signed by both parties, that establishes the binding arbitration process. Subject to

the requirements of ORC 5525.23, the neutral third party or technical expert will assume complete

control of the claim upon execution of the binding arbitration agreement.

Advisory Recommendation Process (Optional)

1. Objective

To more fully allow the DRB to act in an advisory capacity to assist the Department and the Contractor in

resolving selected disputes, the Advisory Recommendation Process may be used to provide the parties

with a preliminary assessment of the merits of each party’s position in the dispute based upon the

information presented pursuant to this process. The process is meant to be expedient, shall be primarily

oral, and will not prejudice a future formal DRB hearing of the dispute.

The Advisory Recommendation Process is not to be substituted for the good faith negotiation efforts.

Rather, the Advisory Recommendation Process should be utilized when negotiations have reached a

temporary impasse.

2. Identification of Disputes

A dispute may be identified as a candidate for an Advisory Recommendation by the Department, the

Contractor, the DRB, or any combination of the above.

3. Concurrence of Both Department and Contractor

Both the Department and the Contractor must concur that the dispute is appropriate for the Advisory

Recommendation Process; else, the dispute must proceed through the Dispute Resolution Board

process as set forth in Proposal Note 108.

4. Pre-meeting Submittals to the DRB

The DRB will decide the nature of the submissions that it wishes the parties to make, on a case-by-case

basis. At a minimum, the DRB will require submission of brief position papers (1 to 2 pages) to all

parties. Include copies of relevant specification sections, plans, notes, drawings, and other pertinent

Contract and /or Project related documentation. The submission will be made at least fifteen (15) days

prior to the next quarterly meeting unless the parties agree to alter the time frames.



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5. Scheduling of Advisory Recommendation Meetings

In most cases, the dispute will be scheduled for presentation to the DRB at the DRB’s next regularly

scheduled meeting. If the parties agree and the schedules permit, a dispute may be heard during the

period between the regularly scheduled meetings, in which case, a meeting will be scheduled at a time

and location convenient to the parties and the DRB.

6. Conduct of Meetings

The Contractor will make its presentation first, followed by the Department. Each party will be allowed

sufficient time to make a thorough oral presentation, make rebuttals, provide the DRB with relevant

documentation and respond to the DRB’s queries and requests.

After receiving all relevant information, the DRB members will, at their discretion, privately caucus to

discuss their assessment of the dispute. Either that same day or the next, the DRB will orally share and

discuss with the parties its assessment and recommendations with respect to the dispute. The Advisory

Recommendation shall not be binding on either party or on the DRB and does not require either party to

accept or reject it. The recommendation does not prejudice the opportunity for a Step 3 hearing if the

dispute is not resolved. If the dispute is presented to the DRB formally at a later date, pursuant to the

Proposal Note 108 process, the DRB will focus anew upon the facts of the dispute as presented at that

time, without reference to the Advisory Recommendation meeting.

7. Resolution

The Advisory Recommendation of the DRB will be used by the parties at any time after Step 1 of the

Dispute Resolution Board Process. If the parties remain unable to resolve the dispute following the

Advisory Recommendation Process, the dispute may proceed in accordance with the next level of

Proposal Note 108 process and the requirements of the DRB approved Operating Procedures.

Basis of Payment

The Department will furnish the following item with an amount in the Proposal:

Item Unit Description

Special Lump Sum Department’s Share of the Dispute Resolution Board

The fixed amount shown in the Proposal is included in the Total Bid Amount. This fixed amount is one

hundred percent of the Department’s estimate of the total cost of all quarterly meetings plus fifty

percent of all costs anticipated for Appeals to the DRB and Advisory Recommendations.

The Department shall bear one hundred percent of all costs associated with the quarterly meetings. The

Contractor and the Department shall bear fifty percent of all costs associated with Appeals to the DRB

and Advisory Recommendations.



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The payments due will be deducted from the item. If the Department’s costs of the DRB exceed the

fixed amount, the Department will continue to pay its share of the actual invoice costs of the DRB. The

Department will not pay a percent mark-up on these costs. The Department will make partial payments

according to C&MS 109.09. This item is exempt from the non-performance table found in C&MS 104.02.

DISPUTE RESOLUTION BOARD THREE PARTY AGREEMENT

THIS THREE PARTY AGREEMENT, hereinafter called "AGREEMENT", made and entered into this

________day of _____________, 20___, between the Ohio Department of Transportation, hereinafter

called the “DEPARTMENT”; and _______________________________________, hereinafter called the

"CONTRACTOR"; and the Dispute Resolution Board, hereinafter called the "DRB" and consisting of three

members:

________________________________, ________________________________,

CONTRACTOR Member DEPARTMENT Member

and __________________________________

CHAIR

WITNESSETH, that

WHEREAS, the DEPARTMENT is now engaged in the construction of project (XXX-XX); and

WHEREAS, the contract for project (XXX-XX) provides for the establishment and operation of the DRB to

assist in resolving disputes and claims; and

WHEREAS, the DRB is composed of three members, one selected by the DEPARTMENT, one selected by

the CONTRACTOR, and the CHAIR selected by the aforementioned two;

NOW THEREFORE, in consideration of the terms, conditions, covenant, and performance contained

herein, or attached and incorporated and made part hereof, the parties hereto agree as follows:

I

DESCRIPTION OF WORK

In order to assist in the resolution of disputes and claims between the CONTRACTOR and the

DEPARTMENT, the DEPARTMENT has provided in the (XXX-XX) contract, for the establishment of the

DRB. The purpose of this DRB, is to fairly and impartially consider disputes placed before it and provide

recommendations for resolution of these disputes to both the DEPARTMENT and the CONTRACTOR.

DRB members shall perform the services necessary to participate in the DRB’s actions as designated in

Section II, Scope of Work.



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II

SCOPE OF WORK

The Scope of Work of the DRB includes, but is not limited to, the following items of work:

A. Operating Procedures for Dispute Resolution

Upon execution of the AGREEMENT, the DRB shall establish Operating Procedures that will govern the

conduct of its business based on the Dispute Resolution Board (DRB) Guidelines which can be found on

ODOT’s website at http://www.dot.state.oh.us/CONTRACT/construction_policy.htm. The DRB may

elect to adopt the “Dispute Resolution Board Operating Procedures for Dispute Resolution” which can

be found on the same website in its entirety or a modified version thereof. At a minimum, these

procedures will establish both the requirements and timeframes for documentation submissions by

both the CONTRACTOR and DEPARTMENT, documentation exchange between the CONTRACTOR and

DEPARTMENT, and the hearing procedures.

The members of the DRB will keep current on the progress of this project by: 1) quarterly visits to the

project, 2) keeping current files, 3) meetings with other DRB members, and 4) meetings with

DEPARTMENT and CONTRACTOR personnel. The frequency of project visits and meetings and content

of members’ files shall be as agreed upon among the DEPARTMENT, CONTRACTOR, and members of the

DRB.

Upon receipt by the DRB of a written Notice of Intent to Appeal to the DRB of a dispute, from either the

CONTRACTOR or the DEPARTMENT, the DRB shall convene to review and consider the appeal. The time

and location of DRB meetings shall be determined by the DRB with reasonable notice to the

DEPARTMENT and CONTRACTOR. Both the DEPARTMENT and CONTRACTOR shall be given the

opportunity to present their evidence at these meetings. It is expressly understood that the DRB

members are to act impartially and independently in the consideration of the contract provisions, and

the facts and conditions surrounding any written appeal presented by the DEPARTMENT or the

CONTRACTOR, and that the recommendations concerning any such appeal are advisory. The DRB

recommendations, resulting from their consideration of a dispute or claim, shall be furnished to the

DEPARTMENT and to the CONTRACTOR in accordance with the process set forth in the Dispute

Resolution Board Process Proposal Note 108. The recommendations shall be based on the pertinent

contract provisions and the facts and circumstances involved in the dispute.

Either the DEPARTMENT or the CONTRACTOR may appeal a recommendation to the DRB for

reconsideration. However, reconsideration will only be allowed when there is new evidence to present.

B. DRB Member Replacement

Should the need arise to appoint a replacement DRB member, the replacement DRB member shall be

appointed in the same manner as the original DRB members were appointed. The selection of a

replacement DRB member shall begin promptly upon notification of the necessity for a replacement and



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shall be completed within 30 calendar days. The AGREEMENT shall be amended to indicate a change in

DRB membership.

III

DEPARTMENT RESPONSIBILITIES

The DEPARTMENT shall furnish the following services and items:

A. Contract Related Documents

The DEPARTMENT shall furnish the DRB three copies of the contract for project (XXX-XX) , change

orders, written instructions issued by the DEPARTMENT to the CONTRACTOR, or other documents

pertinent to the performance and therefore, necessary for the DRB to perform its responsibilities.

B. Coordination and Services

The DEPARTMENT’s Engineer for the (XXX-XX) project will, in cooperation with the CONTRACTOR,

coordinate the operations of the DRB. The DEPARTMENT, through the Engineer, will arrange or provide

conference facilities at or near the contract site and provide secretarial and copying services.

C. Dispute Resolution Documents

1. The DEPARTMENT shall cooperate with the CONTRACTOR to jointly create a Common Support

Document Appendix for each claim that is to be heard by the DRB. This Appendix shall include all

reference documents (applicable plans sheets, specification references, sketches or drawings, etc.)

common to both the DEPARTMENT’S and the CONTRACTOR’S dispute resolution submittal. The

DEPARTMENT will be responsible for producing 5 copies of this document for the first claim (one copy

for each DRB member, the DEPARTMENT and the CONTRACTOR). The CONTRACTOR will be responsible

for producing 5 copies of this document for the second claim. The responsibility will continue to

alternate with subsequent claims, if necessary.

2. The DEPARTMENT shall furnish to each DRB member, one copy of all pertinent documents not

included in the Common Support Document Appendix, which are or may become necessary for the DRB

to perform its responsibilities. Pertinent documents are any documents substantiating or justifying the

DEPARTMENT’S position. A copy of such pertinent documents must also be furnished to the

CONTRACTOR.

Except for its participation in the DRB’s activities as provided in the contract and in this AGREEMENT,

the DEPARTMENT will not solicit advice or consultation from the DRB or any of its members on matters

dealing in any way with the project, the conduct of the work, or resolution of problems.

IV

CONTRACTOR RESPONSIBILITY

The CONTRACTOR shall furnish the following items:



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The CONTRACTOR shall furnish each member of the DRB a copy of the progress schedule and updates

and any other CONTRACTOR-generated documents pertinent to the performance and therefore,

necessary for the DRB to perform its responsibilities.

B. Dispute Resolution Documents

1. The CONTRACTOR shall cooperate with the DEPARTMENT to jointly create a Common Support

Document Appendix for each claim that is heard by the DRB. This Appendix shall include all reference

documents (applicable plans sheets, specifications, sketches or drawings, etc.) common to both the

CONTRACTOR’S and the DEPARTMENT’S dispute resolution submittal. The DEPARTMENT will be

responsible for producing 5 copies of this document for the first claim (one copy for each DRB member,

the DEPARTMENT and the CONTRACTOR). The CONTRACTOR will be responsible for producing 5 copies

of this document for the second claim. The responsibility will continue to alternate with subsequent

claims, if necessary.

2. The CONTRACTOR shall furnish to each DRB member, one copy of all pertinent documents not

included in the Common Support Document Appendix, which are or may become necessary for the DRB

to perform its responsibilities. Pertinent documents are any documents which are used in the

performance of the work or in justifying or substantiating the CONTRACTOR's position. A copy of such

pertinent documents must also be furnished to the DEPARTMENT.

Except for its participation in the DRB’s activities as provided in the contract and in this AGREEMENT,

the CONTRACTOR will not solicit advice or consultation from the DRB or any of its members on matters


V

DURATION OF DRB

The DRB will exist for the life of the (XXX-XX) project only and will not review disputes or claims on any

other project unless as otherwise agreed upon by the DEPARTMENT and the CONTRACTOR. If, after the

DEPARTMENT has made final acceptance of the project, there are unresolved disputes and claims

remaining, the AGREEMENT shall remain active and in full force and effect until the project is otherwise

administratively closed by the DEPARTMENT following final payment so that the DRB may continue in

operation until all unresolved disputes and claims are resolved.

VI

COMPENSATION

A. Compensation Allowed

1. DEPARTMENT and CONTRACTOR Members’ Fees



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DEPARTMENT and CONTRACTOR Members shall be compensated at an agreed rate of

$1,800 per day.

2. CHAIR’s Fee

The Chair shall be compensated at an agreed rate of $2,200 per day.

3. Travel Time

The DRB members shall be reimbursed at the rate of $125 per hour for the time spent

traveling to and from the meeting.

4. Transportation Costs

The DRB members shall be paid for travel expenses incurred in accordance with the Ohio

Office of Budget and Management Travel Policy as published on the State of Ohio website

(http:www.obm.ohio.gov/mppr/travel.asp).

5. Review and Research away from the Project

No additional compensation will be made for the time spent in review and research

activities by the DRB members unless an estimate of that time is specifically agreed upon in

advance and in writing by the Department and the Contractor. Such time that has been

agreed to will be compensated at an agreed rate of $225 per hour. The agreed $225 per

hour shall include all incidentals.

B. Payment

1. Submission for Compensation

The DRB members shall submit to the CONTRACTOR, monthly, each member’s billable time

and travel expenses, and required supporting documentation.

2. Member Compensation

After review and verification by the CONTRACTOR and DEPARTMENT of the members’

submission for compensation, the CONTRACTOR shall pay each member their earned fees.

3. CONTRACTOR Reimbursement

The DEPARTMENT will reimburse the CONTRACTOR for the DEPARTMENT’S share of actual

invoice costs of the members under Lump Sum Item Special – Department’s Share of

Dispute Resolution Board. The Department will not pay a percent mark-up on these costs.

The Department will make partial payments according to C&MS 109.09.

VII

ASSIGNMENT OF TASKS OF WORK



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The DRB members shall not assign any of the work of this AGREEMENT.

VIII

CONFLICT

The members of the DRB agree individually that they do not have any direct or indirect ownership or

financial interest in the CONTRACTOR, any consultant or consulting firm on the project, any

subcontractor or supplier on the project or any business of another DRB member. The members of the

DRB agree individually that they are not currently employed by the DEPARTMENT, the CONTRACTOR, or

any consultants or consulting firms on the project. Service as a member of other DRB’s, as a Dispute

Resolution Advisor or as an arbitrator or mediator shall not be construed to be employment. The

members of the DRB, the DEPARTMENT, and the CONTRACTOR agree that during the life of the

contract, no unilateral discussion will be had or agreement will be made between any DRB member and

any party to this AGREEMENT for employment after the contract is completed.

In the event that a DRB member’s status changes in regards to the aforementioned areas of conflict, the

members of the DRB agree individually to immediately disclose this in writing to both the DEPARTMENT

and the CONTRACTOR. Upon receiving such notification, the DEPARTMENT or the CONTRACTOR may,

within seven (7) calendar days, give notice that this DRB member is no longer acceptable. In no event,

shall a DRB member participate in a hearing of a dispute or claim by the DRB involving a firm by which

he/she is employed.

IX

TERMINATION OF AGREEMENT

The parties to this AGREEMENT mutually agree that this AGREEMENT may be terminated at any time

upon not less than a thirty (30) calendar day written notice to the other parties. In the event the

AGREEMENT is terminated Section 108.02.G of ODOT’s Construction and Material Specifications

(C&MS), Dispute Resolution and Administrative Claims Process that was in affect at the time of the

bidding of this project will immediately become effective. All disputes in Step 1 or Step 2 of this PN109

Note will continue as in Step 1 or Step 2 as described by Section 108.02.G of ODOT’s C&MS. Any claims

in Step 3, to be heard by the DRB, will instead be heard by the Director’s Claims Board.

DRB members may withdraw from the DRB by providing 30 day notice. DRB members may be

terminated for cause only by their original appointing authority, therefore, the DEPARTMENT may only

terminate the DEPARTMENT appointed member, the CONTRACTOR may only terminate the

CONTRACTOR appointed member, and the first two members must agree to terminate the CHAIR.

X

LEGAL RELATIONS



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The parties hereto mutually understand and agree that the DRB member in the performance of duties

on the DRB, is acting in the capacity of an independent agent and not as an employee of either the

DEPARTMENT or the CONTRACTOR and accordingly, no party to this AGREEMENT shall bear a greater

responsibility for damages or personal injury than is normally provided by Federal and Ohio Law.

The parties expressly agree that each DRB member is acting in a capacity intended to facilitate

resolution of disputes. The DEPARTMENT and the CONTRACTOR further agree that neither of them will

seek nor require the testimony or production of documents and/or records from the DRB members in

any administrative, judicial or other proceeding.

XI

FEDERAL REVIEW

The Federal Highway Administration shall be informed of the work of the DRB and shall have the right to

attend any meeting or hearing of the DRB.

IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT as of the day and year first

above written.

DRB MEMBER DRB MEMBER

By:_____________________ By:________________________

Title:___________________ Title:_______________________

CHAIR

By:________________________

Title:_______________________

CONTRACTOR OHIO DEPARTMENT OF TRANSPORTATION

By:______________________ By:_________________________

Title:____________________ Title________________________

Approved as to Form Only this

_____day of _________, 20__

________________________

Assistant Attorney General

DESIGNER’S NOTE:



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For immediate use. This note shall appear on all projects over $20,000,000 and/or of a highly technical

nature. In all cases consultation must be made with the Division of Construction Management Dispute

Resolution Coordinator (614-466-3957) prior to a final determination.

Do not use PN 109 – Department’s Share of the Dispute Resolution Advisor if this note is used.

The Dispute Resolution Board is a contract pay item as per this note. Provide an encumbered dollar

value to be placed in the Proposal for the Item 100E50000 Special – Department’s Share of the Dispute

Resolution Board. In all cases consultation must be made with the Division of Construction

Management Dispute Resolution Coordinator (614-466-3957) prior to a final determination of the dollar

value. This amount should only be provided in the C2 Estimate and in the Special

Considerations/Remarks Field on the Plan Package Submittal Form.

Any questions on this note should be directed to the Division of Construction Management Dispute

Resolution Coordinator 614-466-3957.



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PN 109 – 10/19/2012 DISPUTE RESOLUTION ADVISOR PROCESS

The Department’s Dispute Resolution Advisor Process is based upon the partnering approach to

construction administration and must be followed by the Contractor in order to resolve disputes on the

project.

Purpose

The purpose of the Dispute Resolution Advisor (DRA) is to provide special expertise to assist in and

facilitate the timely and equitable resolution of disputes and claims. The goal is to avoid delays to the

contract work, minimize the expense of settlement, avoid litigation, and promote project partnering.

The DRA will render non-binding recommendations on issues brought before them.

DRA Membership

The DRA is one person, selected jointly by the Department and the Contractor. This person must meet

the “Requirements of the DRA” set forth below.

Requirements of a DRA

The DRA shall have at least ten years of experience with the type of construction involved on this

project, construction contract administration principles, and dispute resolution training.

The DRA must not show or be perceived as showing partiality to either the Contractor or the

Department. A DRA shall not have any conflict of interest which could affect the ability to act in a

disinterested and unbiased manner.

A person proposed as the DRA shall submit a resume covering his/her applicable education and

experience to the party nominating him/her. The resume shall include a list of all projects on which

he/she serves as a DRA and any Dispute Resolution Boards (DRB) on which he/she currently serves along

with meeting frequencies. A disclosure statement shall be submitted and include, but not limited by, any

of the following categories of relationships or prior involvement in this project:

A. Any direct or indirect ownership or financial interest in the Contractor, consultant or

consulting firm on the projector subcontractor or supplier on the project.

B. Current employment by the Department, the Contractor, a consultant or consulting firm on

the project, or any subcontractor or supplier on the project.

C. Within the one year period immediately prior to award of the contract: employment by the

Department or the Contractor, consultant or consulting firm on the project or subcontractor or

supplier on the project.

D. A close personal relationship with any key individual in any firm involved in the contract.

E. A prior involvement in the project of a nature, which might be construed as compromising

his/her ability to act impartially in carrying out the duties of the DRA.



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F. A contract as a consultant to the Department or the Contractor or any subcontractor or

supplier on the project.

Category “A” and “B” relationships listed above shall disqualify a person from serving as the DRA for this

project. The other categories listed above will be considered by the Department and the Contractor in

arriving at their decision as to whether or not to accept a person as the DRA. If a prospective DRA

discloses a relationship or prior involvement in this project listed in other than category “A” and “B” is

considered to be highly qualified and desirable as the DRA, the Department and the Contractor may, by

mutual agreement, approve that person to serve as the DRA.

If a person submits a disclosure statement which fails to provide accurate and complete disclosure of a

relationship described in A through F above the Department may disqualify that person from serving as

a DRA or on a DRB on future Department projects.

Service as a member of a DRB, as a DRA on another project or as an arbitrator or mediator shall not be

construed as employment and therefore will not preclude a person from service as the DRA for this

project.

DRA Establishment

Every attempt shall be made by the Department and the Contractor to complete the selection of the

DRA and execute the “Dispute Resolution Advisor Three-Party Agreement” prior to the date of the

preconstruction conference. At a minimum, the following timeframes for selecting the DRA must be

followed.

Within twenty-one (21) calendar days of the signing of the contract, both the Department and the

Contractor shall put forward the names of two (2) people to consider for appointment as the DRA for

the Project along with the resumes and disclosure statements of those persons. Using the resumes of

each of the four proposed candidates the Department and the Contractor shall choose one person as

the DRA for this project within twenty-one (21) calendar days.

Immediately after the DRA is determined the Department, Contractor and DRA shall execute the

“Dispute Resolution Advisor Three Party Agreement” as provided at the end of this proposal note. The

execution of this agreement will not modify the requirements, terms or conditions of the contract.

DRA Member Termination

If during the life of the contract, the DRA’s status changes in regards to category

“A” or “B” categories set forth in the “Requirements of a DRA” above he/she shall immediately disclose

this in writing to both the Department and the Contractor. Upon receiving such notification, the

Department or the Contractor may, within seven

(7) calendar days, give notice that the DRA member is no longer acceptable. In no event, shall a DRA

participate in a hearing of a dispute or claim involving a firm by which he/she is employed.



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Service of the DRA may be terminated at any time with not less than thirty (30) calendar days’ notice by

agreement of the Department and the Contractor or resignation of the DRA.

DRA Replacement

In the event that the DRA position becomes vacant a replacement will be appointed in the same manner

as the original DRA. The selection of a replacement DRA shall be completed within thirty (30) days of the

creation of the vacancy. A new “Dispute Resolution Advisor Three Party Agreement” shall be executed.

DRA Operation and Duties

The DRA, with input from the Department and the Contractor, will establish the Operating Procedures

for Dispute Resolution. The DRA may elect to adopt the “Dispute Resolution Advisor (DRA) Operating

Procedures for Dispute Resolution” which can be found on ODOT’s website at

http://www.dot.state.oh.us/CONTRACT/construction_policy.htm in its entirety or a modified version

thereof.

The DRA will keep current on the progress of this project by: 1) quarterly visits to the project, 2) keeping

current files and 3) joint meetings with Department and Contractor personnel. The frequency of project

visits and meetings and content of members’ files shall be as agreed upon among the Department, the

Contractor, and the DRA.

The DRA shall be responsible for arranging and conducting meetings, hearings, mediation sessions,

project visits, and writing recommendations on claims presented to the DRA.

The DRA will not maintain an official transcript of its hearings or deliberations. The DRA shall perform

the responsibilities impartially and independently considering the facts and conditions related to the

matters under consideration and the provisions of the contract.

Should the Department and the Contractor mutually agree to terminate a “Dispute Resolution Advisor

Three Party Agreement,” the existing “Dispute Resolution Advisor Three Party Agreement” will remain in

force until replaced by another fully executed “Dispute Resolution Advisor Three Party Agreement.”

The DRA will serve for the life of this project only and will not review disputes or claims on any other

project unless as otherwise agreed upon by the Department and the Contractor. If, after the

Department has made final acceptance of the project, there are unresolved disputes and claims

remaining, the “Dispute Resolution Advisor Three Party

Agreement” shall remain active and in full force and effect until the project is otherwise administratively

closed by the Department following final payment so that the DRA may continue to serve until all

unresolved disputes and claims are resolved.



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Disputes and Claims

Disputes include disagreements, matters in question, and differences of opinion between the

Department’s personnel and the Contractor. Claims are disputes that are not settled through Steps 1and

2 of the Dispute Resolution Advisor Process.

Disputes and claims by subcontractors and suppliers may be pursued by the Contractor on behalf of

subcontractors or suppliers. Disputes and claims by subcontractors and suppliers against the Contractor

will not be reviewed by the Department or the DRA.

Disputes and claims by subcontractors and suppliers against the Department but not supported by the

Contractor will not be reviewed by the Department or the DRA.

Process

Whenever an issue is elevated to a dispute, the parties shall exhaust the Dispute Resolution Board

Process as set forth below prior to filing an action in the Ohio Court of Claims. The following procedures

do not compromise the Contractor’s right to seek relief in the Ohio Court of Claims.

Failure to meet any of the timeframes outlined below or to request an extension may terminate further

review of the dispute and may serve as a waiver of the Contractor’s right to file a claim.

Continuation of Work.


Step 1 (On-Site Determination).

The Engineer will meet with the Contractor’s superintendent within two (2) working days of receipt of

the Contractor’s Written Early Notice set forth in 108.02.F.2. They will review all pertinent information

and contract provisions and negotiate in an effort to reach a resolution according to the Contract

Documents. The Engineer will issue a written decision of Step 1 within fourteen (14) calendar days of

the meeting. If the dispute is not resolved, either abandon or escalate the dispute to Step 2.

Step 2 (District Dispute Resolution Committee).

Within seven (7) calendar days of receipt of the Step 1 decision submit a written request for a Step 2

meeting to the District Construction Administrator (DCA). The DCA will assign the dispute a dispute

number. The dispute number will consist of the District number, followed by a hyphen, the project

number, followed by a hyphen and then the number of disputes on this project that this dispute

represents. Within fourteen (14) calendar days of receipt of the request for a Step 2 meeting, the

Contractor shall submit the Dispute Documentation as follows:

1. Submit three (3) complete copies of the documentation of the dispute to the DCA.



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2. Identify the dispute on a cover page by county, project number, Contractor name,

subcontractor or supplier if involved in the dispute, and dispute number.

3. Clearly identify each item for which additional compensation and time extension requested.

4. Provide a narrative of the disputed work or project circumstance at issue.

5. Include the dates of the disputed work and the date of early notice.

6. Reference the applicable provisions of the plans, specifications, proposal, or other contract

documents in dispute. Include copies of the cited provisions in the Dispute Documentation.

7. Include the dollar amount of additional compensation and length of contract time extension

being requested.

8. Supporting documents for the requested compensation stated in number six (6) above.

9. Provide a detailed schedule analysis for any dispute concerning additional contract time,

actual or constructive acceleration, or delay damages. At a minimum, the schedule analysis

must include the Schedule Update immediately preceding the occurrence of the

circumstance alleged to have caused delay and must comport with accepted industry

practices. Failure to submit the required schedule analysis will result in the denial of that

portion of the Contractor’s request.

10. Include copies of relevant correspondence and other pertinent documents.

Each District will establish a District Dispute Resolution Committee (DDRC) which will be responsible for

hearing and deciding disputes at the Step 2 level. The DDRC will consist of the District Deputy Director

District Construction Administrator (DCA) and the Planning & Engineering Administrator or designees

(other than the project personnel involved).

To prepare for the DDRC meeting, the DCA will create a file on the dispute and assign a person to review

and manage the dispute. This manager will advise the Dispute Resolution Coordinator in the Division of

Construction Management on the status of the dispute.

Within fourteen (14) calendar days of receipt of the Contractor’s Dispute Documentation the DDRC will

meet with Contractor personnel authorized to resolve the dispute. The DDRC will issue a written

decision of Step 2 within fourteen (14) calendar days of the meeting. If the dispute is not resolved

either abandon or appeal to the DRA as outlined below.

The Department’s and Contractor’s personnel shall not contact the DRA until a decision has been issued

by the DDRC.

Step 3 (Appeal to DRA).

Within fourteen (14) calendar days of receipt of the Step 2 decision, the Contractor must submit a

written Notice of Intent to Appeal to the DRA to the DRA. This notice shall state the Contractor’s request



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for a DRA hearing. The Contractor must also submit copies of this notice to the DCA and Deputy

Director of the Division of Construction Management.

The dispute becomes a claim when the DRA receives the Notice of Intent to Appeal to the DRA. The DRA

will not consider a claim until the DDRC has properly reviewed the dispute and issued a decision.

The Operating Procedures for Dispute Resolution established by the DRA will set forth the Step 3

(Appeal to DRA) process in detail. At a minimum, these procedures will establish both the requirements

and timeframes for documentation submissions by both the Contractor and Department,

documentation exchange between the Contractor and Department, and the hearing procedures.

The Contractor shall submit its Claim Documentation in accordance with the DRA’s Operating

Procedures for Dispute Resolution. In addition to the documentation submitted at Step 2, the narrative

shall be enhanced to include sufficient description and information to enable understanding by a third

party who has no knowledge of the dispute or familiarity with the project. This documentation must

also include a discussion of the efforts taken to partner the dispute. The DRA may also require

additional information be included in the Contractor’s Claim Documentation.

Certify the claim in writing and under oath using the following certification:

I, (Name and Title of an Officer of the Contractor) certify that this claim is made in good

faith, that all supporting data is accurate and complete to the best of my knowledge and

belief, and that the claim amount accurately reflects the contract amendment for which

( Contractor Company name) believes the Department is liable.

(The Contractor)

By: ____________________

(Name and Title)

Date of Execution: ________

Sign and date this claim certification and have the signature notarized pursuant to the laws of the State

of Ohio. The date the DRA receives the certified claim documentation is the date of the Department’s

Receipt of the Certified Claim for the purpose of the calculation of interest as defined in 108.02.G.4.

In accordance with the DRA’s Operating Procedures for Dispute Resolution, the District will be instructed

to submit its Claim Documentation in response to the Contractor’s Claim Documentation. At a minimum,

the District’s Claim Documentation must include:

1. An overview of the project.

2. A narrative of the disputed work or project circumstance at issue with sufficient description

and information to enable understanding by a third party who has no knowledge of the

dispute or familiarity with the project.



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3. The dates of the disputed work and the date of early notice.

4. Discuss the efforts taken to partner the dispute.

5. References to the applicable provisions of the plans, specifications, proposal, or other

contract documents. Copies of the cited provisions shall be included in the claim document.

6. Response to each argument set forth by the Contractor.

7. Any counterclaims, accompanied by supporting documentation, the District wishes to assert.

8. Copies of relevant correspondence and other pertinent documents.

The DRA may also require additional information be included in the District’s Claim Documentation.

In the event of multiple claims, the DRA may order that they be considered in a single hearing. The DRA

may hold this hearing after the completion of the project or until such time that it is assured that all

disputes on the project have been processed through Steps 1 and 2 of the Dispute Resolution Advisor

Process and these issues are before the DRA.

The DRA will hear the entire claim. The DRA will hear oral presentations from both sides. The DRA may,

on its own initiative, request information of the Contractor or the Department in addition to that

submitted for the hearing. If either party fails to reasonably comply with such request, the DRA may

render its recommendation without such information.

Upon completion of the hearing and consideration of any additional information submitted upon

request, the DRA will render its written recommendation within fourteen (14) calendar days of the

hearing.

The recommendation shall be a well-reasoned decision which, at a minimum, shall include:

1. The claim number; the project number; county, route and section number; Contractor name; subcontractor’s or supplier’s name if involved in the dispute; and the commonly referenced name of the dispute on the cover sheet or the first page of the decision.

2. Sufficient description of the project and the claim to enable understanding by a third party who has no knowledge of the claim or familiarity with the project.

3. The value of the claim as determined by the Contractor, if applicable. 4. The value of the claim as determined by the Department, if applicable. 5. Finding of fact and a conclusion that provides clear direction to the parties.

The DRA must submit copies of the recommendation to the Contractor, DCA and Deputy Director of the

Division of Construction Management.

Within three (3) days of receipt of the recommendation, either party may request a meeting with the

DRA to hear the DRA’s explanation of the recommendation. Within seven (7) days of this request, the

DRA shall conduct this meeting with both the Department and the Contractor.



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Within twenty-one (21) calendar days of receipt of the recommendation, the Contractor must indicate

its intentions in writing to the Department and the Chair in regards to the recommendation.

Simultaneously, the Director or designee will determine the Department’s intentions in regards to the

recommendation. This determination will be issued in writing to the Contractor and the DRA within

twenty-one (21) calendar days of receipt of the recommendation.

Either the Department or the Contractor may appeal a recommendation to the DRA for reconsideration.

However, reconsideration will only be allowed when there is new evidence to present.

The recommendation of the DRA is the final step of the Department’s Dispute Resolution Advisor

Process and may not be appealed within the Department. The DRA is not bound by any offers of

settlement or findings of entitlement made during Steps 1 and 2 of the Dispute Resolution Advisor

Process.

Interest on Claims.

The Department will pay interest in accordance with ORC Section 5703.47 on any amount found due on

a claim which is not paid within 30 days of the Claims Coordinator's Receipt of the Certified Claim.

Binding Arbitration (Optional).

In lieu of the DRA hearing the Contractor may request that the claim proceed through binding

arbitration. The Department may agree to binding arbitration as defined by ORC 5525.23 in the manner

in which this method is practiced by the Department and allowed by law. At its discretion, the

Department may decline the Contractor’s request.

ODOT’s Dispute Resolution Coordinator will coordinate the agreement of the parties to the binding

arbitration method and the selection of a neutral third party or technical expert. The fees of the neutral

third party or technical expert will be shared equally. The Dispute Resolution Coordinator will obtain a

written agreement, signed by both parties, that establishes the binding arbitration process. Subject to

the requirements of ORC 5525.23, the neutral third party or technical expert will assume complete

control of the claim upon execution of the binding arbitration agreement.

Advisory Recommendation Process (Optional)

1. Objective

To more fully allow the DRA to act in an advisory capacity to assist the Department and the Contractor in

resolving selected disputes, the Advisory Recommendation Process may be used to provide the parties

with a preliminary assessment of the merits of each party’s position in the dispute based upon the

information presented pursuant to this process. The process is meant to be expedient, shall be primarily

oral, and will not prejudice a future formal DRA hearing of the dispute.



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The Advisory Recommendation Process is not to be substituted for the good faith negotiation efforts.

Rather, the Advisory Recommendation Process should be utilized when negotiations have reached a

temporary impasse.

2. Identification of Disputes

A dispute may be identified as a candidate for an Advisory Recommendation by the Department, the

Contractor, the DRA, or any combination of the above.

3. Concurrence of Both Department and Contractor

Both the Department and the Contractor must concur that the dispute is appropriate for the Advisory

Recommendation Process; else, the dispute must proceed through the Dispute Advisory Board process

as set forth in Proposal Note 109.

4. Pre-meeting Submittals to the DRA

The DRA will decide the nature of the submissions that it wishes the parties to make, on a case-by-case

basis. At a minimum, the DRA will require submission of brief position papers (1 to 2 pages) to all

parties. Include copies of relevant specification sections, plans, notes, drawings, and other pertinent

Contract and /or Project related documentation. The submission will be made at least fifteen (15) days

prior to the next quarterly meeting unless the parties agree to alter the time frames.

5. Scheduling of Advisory Recommendation Meetings

In most cases, the dispute will be scheduled for presentation to the DRA at the DRA’s next regularly

scheduled meeting. If the parties agree and the schedules permit, a dispute may be heard during the

period between the regularly scheduled meetings, in which case, a meeting will be scheduled at a time

and location convenient to the parties and the DRA.

6. Conduct of Meetings

The Contractor will make its presentation first, followed by the Department. Each party will be allowed

sufficient time to make a thorough oral presentation, make rebuttals, provide the DRA with relevant

documentation and respond to the DRA’s queries and requests.

Either that same day or the next, the DRA will orally share and discuss with the parties its assessment

and recommendations with respect to the dispute. The Advisory Recommendation shall not be binding

on either party or on the DRA and does not require either party to accept or reject it. The

recommendation does not prejudice the opportunity for a Step 3 hearing if the dispute is not resolved. If

the dispute is presented to the DRA formally at a later date, pursuant to the Proposal Note 109 process,

the DRA will focus anew upon the facts of the dispute as presented at that time, without reference to

the Advisory Recommendation meeting.

7. Resolution



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The Advisory Recommendation of the DRA will be used by the parties at any time after Step 1 of the

Dispute Resolution Advisory Process. If the parties remain unable to resolve the dispute following the

Advisory Recommendation Process, the dispute may proceed in accordance with the next level of

Proposal Note 109 process and the requirements of the DRA approved Operating Procedures.

Basis of Payment

The Department will furnish the following item with an amount in the Proposal:

Item Unit Description

Special Lump Sum Department’s Share of the Dispute Resolution Advisor

The fixed amount shown in the Proposal is included in the Total Bid Amount. This fixed amount is one

hundred percent of the Department’s estimate of the total cost of all quarterly meetings plus fifty

percent of all costs anticipated for Appeals to the DRA and Advisory Recommendations.

The Department shall bear one hundred percent of all costs associated with the quarterly meetings. The

Contractor and the Department shall bear fifty percent of all costs associated with the Appeals to the

DRA and Advisory Recommendations.

The payments due will be deducted from the item. If the Department’s costs of the DRA exceed the

fixed amount, the Department will continue to pay its share of the actual invoice costs of the DRA. The

Department will not pay a percent mark-up on these costs. The Department will make partial payments

according to C&MS 109.09. This item is exempt from the non-performance table found in C&MS 104.02.

DISPUTE RESOLUTION ADVISOR THREE PARTY AGREEMENT

THIS THREE PARTY AGREEMENT, hereinafter called "AGREEMENT", made and entered into this

________day of _____________, 20___, between the Ohio Department of Transportation, hereinafter

called the “DEPARTMENT”; and _______________________________________, hereinafter called the

"CONTRACTOR"; and ________________________ hereinafter called the Dispute Resolution Advisor,

or "DRA"

WITNESSETH, that

WHEREAS, the DEPARTMENT is now engaged in the construction of project

(XXX-XX); and

WHEREAS, the contract for project (XXX-XX) provides for the establishment and operation of the DRA to

assist in resolving disputes and claims; and

WHEREAS, the DRA was selected jointly by the CONTRACTOR and the DEPARTMENT:

NOW THEREFORE, in consideration of the terms, conditions, covenant, and performance contained

herein, or attached and incorporated and made part thereof, the parties hereto agree as follows:



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I

DESCRIPTION OF WORK

In order to assist in the resolution of disputes and claims between the CONTRACTOR and the

DEPARTMENT, the DEPARTMENT has provided in the (XXX-XX) contract, for the establishment of the

DRA. The purpose of this DRA, is to fairly and impartially consider disputes placed before it and provide

recommendations for resolution of these disputes to both the DEPARTMENT and the CONTRACTOR.

The DRA shall perform the services necessary to participate in the DRA’s actions as designated in

Section II, Scope of Work.

II

SCOPE OF WORK

The Scope of Work of the DRA includes, but is not limited to, the following items of work:

A. Operating Procedures for Dispute Resolution

Upon execution of the AGREEMENT, the DRA shall establish Operating Procedures that will govern the

conduct of its business based on the Dispute Resolution Advisor (DRA) Guidelines which can be found on

ODOT’s website at http://www.dot.state.oh.us/CONTRACT/construction_policy.htm. The DRA may elect

to adopt the “Dispute Resolution Advisor Operating Procedures for Dispute Resolution” which can be

found on the same website in its entirety or a modified version thereof. At a minimum, these

procedures will establish both the requirements and timeframes for documentation submissions by

both the CONTRACTOR and DEPARTMENT, documentation exchange between the CONTRACTOR and

DEPARTMENT, and the hearing procedures.

The DRA will keep current on the progress of this project by: 1) quarterly visits to the project, 2) keeping

current files, and 3) joint meetings with DEPARTMENT and CONTRACTOR personnel. The frequency of

project visits and meetings and content of the DRA’s files shall be as agreed upon among the

DEPARTMENT, CONTRACTOR, and the DRA.

Upon receipt by the DRA of a written Notice of Intent to Appeal to the DRA of a dispute, from either the

CONTRACTOR or the DEPARTMENT, the DRA shall convene to review and consider the appeal. The time

and location of DRA meetings shall be determined by the DRA with reasonable notice to the

DEPARTMENT and CONTRACTOR. Both the DEPARTMENT and CONTRACTOR shall be given the

opportunity to present their evidence at these meetings. It is expressly understood that the DRA is to

perform its responsibilities impartially and independently in the consideration of the contract provisions,

and the facts and conditions surrounding any written appeal presented by the DEPARTMENT or the

CONTRACTOR, and that the recommendations concerning any such appeal are advisory. The DRA

recommendations, resulting from their consideration of a dispute or claim, shall be furnished to the

DEPARTMENT and to the CONTRACTOR in accordance with the process set forth in the Dispute

Resolution Advisory Process Proposal Note 109. The recommendations shall be based on the pertinent

contract provisions and the facts and circumstances involved in the dispute.



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Either the DEPARTMENT or the CONTRACTOR may appeal a recommendation to the DRA for

reconsideration. However, reconsideration will only be allowed when there is new evidence to present.

B. DRA Member Replacement

Should the need arise to appoint a replacement DRA, the replacement DRA shall be appointed in the

same manner as the original DRA was appointed. The selection of a replacement DRA shall begin

promptly upon notification of the necessity for a replacement and shall be completed within 30 calendar

days. The AGREEMENT shall be amended to indicate the new DRA.

III

DEPARTMENT RESPONSIBILITIES

The DEPARTMENT shall furnish the following services and items:


The DEPARTMENT shall furnish the DRA one copy of the contract for project (XXXXX), change orders,

written instructions issued by the DEPARTMENT to the CONTRACTOR, or other documents pertinent to

the performance and therefore, necessary for the DRA to perform his/her responsibilities.

B. Coordination and Services

The DEPARTMENT’s Engineer for the (XXX-XX) project will, in cooperation with the

CONTRACTOR, coordinate the operations of the DRA. The DEPARTMENT, through the Engineer, will

arrange or provide conference facilities at or near the contract site and provide secretarial and copying

services.

C. Dispute Resolution Documents

1. The DEPARTMENT shall cooperate with the CONTRACTOR to jointly create a

Common Support Document Appendix for each claim that is to be heard by the DRA.

This Appendix shall include all reference documents (applicable plans sheets, specification references,

sketches or drawings, etc.) common to both the DEPARTMENT’S and the CONTRACTOR’S dispute

resolution submittal. The

DEPARTMENT will be responsible for producing 3 copies of this document for the first claim (one copy

for the DRA, the DEPARTMENT and the CONTRACTOR). The CONTRACTOR will be responsible for

producing 3 copies of this document for the second claim. The responsibility will continue to alternate

with subsequent claims, if necessary.

2. The DEPARTMENT shall furnish the DRA one copy of all pertinent documents not included in the

Common Support Document Appendix, which are or may become necessary for the DRA to perform



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his/her responsibilities. Pertinent documents are any documents substantiating or justifying the

DEPARTMENT’S position. A copy of such pertinent documents must also be furnished to the

CONTRACTOR.

Except for its participation in the DRA’s activities as provided in the contract and in this

AGREEMENT, the DEPARTMENT will not solicit advice or consultation from the DRA on matters dealing

in any way with the project, the conduct of the work, or resolution of problems.

IV

CONTRACTOR RESPONSIBILITY

The CONTRACTOR shall furnish the following items:


The CONTRACTOR shall furnish the DRA a copy of the progress schedule and updates and any other

CONTRACTOR-generated documents pertinent to the performance and therefore, necessary for the

DRA to perform his/her responsibilities.

B. Dispute Resolution Documents

1. The CONTRACTOR shall cooperate with the DEPARTMENT to jointly create a Common Support

Document Appendix for each claim that is heard by the DRA. This Appendix shall include all reference

documents (applicable plans sheets, specifications, sketches or drawings, etc.) common to both the

CONTRACTOR’S and the DEPARTMENT’S dispute resolution submittal. The DEPARTMENT will be

responsible for producing 3 copies of this document for the first claim (one copy for the DRA, the

DEPARTMENT and the CONTRACTOR). The CONTRACTOR will be responsible for producing 3 copies of

this document for the second claim. The responsibility will continue to alternate with subsequent claims,

if necessary.

2. The CONTRACTOR shall furnish the DRA, one copy of all pertinent documents not included in the

Common Support Document Appendix, which are or may become necessary for the DRA to perform

their his/her responsibilities. Pertinent documents are any documents which are used in the

performance of the work or in justifying or substantiating the CONTRACTOR's position. A copy of such

pertinent documents must also be furnished to the DEPARTMENT.

Except for its participation in the DRA’s activities as provided in the contract and in this AGREEMENT,

the CONTRACTOR and the DEPARTMENT will not solicit advice or consultation from the DRA on matters


V

DURATION OF DRB



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The DRA will serve for the life of the (XXX-XX) project only and will not review disputes or claims on any

other project unless as otherwise agreed upon by the DEPARTMENT and the CONTRACTOR. If, after the

DEPARTMENT has made final acceptance of the project, there are unresolved disputes and claims

remaining, the AGREEMENT shall remain active and in full force and effect until the project is otherwise

administratively closed by the DEPARTMENT following final payment so that the DRA may continue to

serve until all unresolved disputes and claims are resolved.

VI

COMPENSATION

A. Compensation Allowed

1. DRA’s Fees

The DRA shall be compensated at an agreed rate of $2,200 per day.

2. Travel Time

The DRA shall be reimbursed at the rate of $125 per hour for the time spent traveling to

and from the meeting.

3. Transportation Costs

The DRA shall be paid for travel expenses incurred in accordance with the Ohio Office of

Budget and Management Travel Policy as published on the State of Ohio website

(http:www.obm.ohio.gov/mppr/travel.asp).

4. Review and Research Away from the Project

No additional compensation will be made for the time spent in review and research

activities by the DRA unless an estimate of that time is specifically agreed upon in advance

and in writing by the DEPARTMENT and the CONTRACTOR. Such time that has been agreed

to will be compensated at an agreed rate of $225 per hour. The agreed $225 per hour shall

include all incidentals.

B. Payment

1. Submission for Compensation

The DRA shall submit billable time and travel expenses and required supporting

documentation to the CONTRACTOR monthly.

2. Member Compensation

After review and verification by the CONTRACTOR and DEPARTMENT of the DRA’s

submission for compensation, the CONTRACTOR shall pay the DRA the fees earned.



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C. CONTRACTOR Reimbursement

The DEPARTMENT will reimburse the CONTRACTOR for the DEPARTMENT’S share of actual invoice

costs of the members under Lump Sum Item Special – Department’s Share of the Dispute Resolution

Advisor. The DEPARTMENT will not pay a percent mark-up on these costs. The DEPARTMENT will

make partial payments according to C&MS 109.09.

VII

ASSIGNMENT OF TASKS OF WORK

The DRA shall not assign any of the work of this AGREEMENT.

VIII

CONFLICT

The DRA agrees that he/she does not have any direct or indirect ownership or financial interest in the

CONTRACTOR, any consultant or consulting firm on the project, any subcontractor or supplier on the

project. The DRA agrees he/she is not currently employed by the DEPARTMENT, the CONTRACTOR, or

any consultants or consulting firms on the project. Service as a member of any Dispute Resolution

Boards, elsewhere as a DRA or as an arbitrator or mediator shall not be construed to be employment.

The DRA, the DEPARTMENT, and the CONTRACTOR agree that during the life of the contract, no

unilateral discussion will be had or agreement will be made between the DRA and any party to this

AGREEMENT for employment after the contract is completed.

In the event that the DRA’s status changes in regards to the aforementioned areas of conflict, the DRA

agrees to immediately disclose this in writing to both the DEPARTMENT and the CONTRACTOR. Upon

receiving such notification, the DEPARTMENT or the CONTRACTOR may, within seven (7) calendar days,

give notice that this DRA member is no longer acceptable. In no event, shall a DRA participate in a

hearing of a dispute or claim involving a firm by which he/she is employed.

IX

TERMINATION OF AGREEMENT

The parties to this AGREEMENT mutually agree that this AGREEMENT may be terminated at any time

upon not less than a thirty (30) calendar day written notice to the other parties. In the event the

AGREEMENT is terminated Section 108.02.G of ODOT’s Construction and Material Specifications

(C&MS), Dispute Resolution and Administrative Claims Process that was in affect at the time of the

bidding of this project will immediately become effective. All disputes in Step 1 or Step 2 of this PN108

Note will continue as in Step 1 or Step 2 as described by Section 108.02.G of ODOT’s C&MS. Any claims

in Step 3, to be heard by the DRA, will instead be heard by the Director’s Claims Board.

The DRA may withdraw by providing 30 days’ notice. The DRA may be terminated for cause only by

mutual agreement of the DEPARTMENT and the CONTRACTOR.



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X

LEGAL RELATIONS

The parties hereto mutually understand and agree that the DRA in the performance of duties of the

DRA, is acting in the capacity of an independent agent and not as an employee of either the

DEPARTMENT or the CONTRACTOR and accordingly, no party to this AGREEMENT shall bear a greater

responsibility for damages or personal injury than is normally provided by Federal and Ohio Law.

The parties expressly agree that the DRA is acting in a capacity intended to facilitate resolution of

disputes. The DEPARTMENT and the CONTRACTOR further agree that neither of them will seek nor

require the testimony or production of documents and/or records from the DRA in any administrative,

judicial or other proceeding.

XI

FEDERAL REVIEW

The Federal Highway Administration shall be informed of the work of the DRA and shall have the right to

attend any meeting or hearing of the DRA.

IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT as of the day and year first

above written.

DRA

By:_____________________

Title:___________________

CONTRACTOR

By:______________________

Title:____________________

OHIO DEPARTMENT OF TRANSPORTATION

By:______________________

Title:____________________

Approved as to Form Only this

_____day of _________, 20__

________________________

Assistant Attorney General



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DESIGNER’S NOTE:

For immediate use. This note should appear on all projects over $5,000,000 but under $20,000,000. In

all cases consultation must be made with the Division of Construction Management Dispute Resolution

Coordinator (614-466-3957) prior to a final determination.

Do not use PN 108 – Dispute Resolution Board Process if this note is used.

The Dispute Resolution Advisor is a contract pay item as per this note.

Provide an encumbered dollar value to be placed in the Proposal for the Item 100E50000 Special – The

Department’s Share of the Dispute Resolution Advisor. In all cases consultation must be made with the

Division of Construction Management Dispute Resolution Coordinator (614-466-3957) prior to a final

determination of the dollar value. This amount should only be provided in the C2 Estimate and in the

Special Considerations/Remarks Field on the Plan Package Submittal Form.

Any questions on this note should be directed to the Division of Construction Management Dispute

Resolution Coordinator 614-466-3957.



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Appendix E – Partnering Concepts



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STANDARDS AND EXPECTATIONS GUIDE DIVISION OF …...• Familiarity with ODOT’s Partnering...

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