The National Academies

TCRP J-05/Topic 19-04 [RFP]

Transit Sponsor and Contractor Delay Damages and Remedies Due to Third Parties - Transit Facility Improvements-Common Legal Issues and Solutions
[ TCRP J-05 (Legal Aspects of Transit and Intermodal Transportation Programs) ]

Posted Date: 7/23/2019

  Project Data
Funds: $50,000
Contract Time: 12 months
Authorization to Begin Work: 1/7/2020 -- estimated
Staff Responsibility: Gwen Chisholm-Smith
   Phone: 202-334-3246
   Email: gsmith@nas.edu
Comments: RFP
RFP Close Date: 10/2/2019
Fiscal Year: 2018



The Transit Cooperative Research Program (TCRP) plans to award a contract for a study and report. Legal research reports sponsored by this project are published in TCRP's Legal Research Digest (LRD) series in electronic format. Publications are made available to some libraries and to approximately 4,000 transportation lawyers and officials through the TRB distribution network.




Transit agencies are often involved in facility construction projects.  These may be transit fixed stations, maintenance, and similar facilities as well as longitudinal facility construction, surface and underground. Project sponsors have contracts that may be used to control its exposure to claims of sponsor-caused delays, but sponsors and their contractors often are impacted by delays due to the conduct or nonperformance of third parties outside of the contract. These third parties cause project delivery delays and increased costs, both at the bidding and performance stages of the contract.  The risk of nonperformance or delayed performance by third party contractors may result in increased bid prices and project costs, from the perspective of the sponsor, the sponsor’s contractor and subcontractors, and the public. 




The objective of this research is to produce a legal research digest that provides potential remedies available to the sponsor and contractors that experience increased costs due to delays and show how those damages are measured.  Remedies must include legal and administrative remedies, including risk allocation, and legal and practical enforcement issues.


The research should address:


·         Ownership of property;

·         Right of way;

·         Allocation of risk between sponsor and contractor; and

·        Third parties (such as utilities), adjoining owners (such as railroads), and techniques (such as guaranteed maximum contract price). 


Interviews should be conducted as appropriate with a representative subset of this group. Relevant statutes and regulations, permit, and accommodation policies should be collected.




Selected Studies in Transportation Law, Vol. 1: Construction Contract Law - 2014 Supplement covers provisions regarding delay damages but from the perspective of claims against the owner by the contractor.  Claims against others is against design professionals who are not third parties but contract with owner too. http://www.trb.org/main/blurbs/170976.aspx  See Pages 6-35 and 6-39 to 6-54 for damages discussion against owner, and pages 5-44 for owner remedies and recovery.


1.    Update SSTL, Volume 5, Transit Law does not directly address the issue, but may offer some insight into remedies due to third parties.

2.    TCRP Legal Research Digest 47: Legal Issues with Obtaining Insurance on Large Transit Capital Projects:




This research will be conducted in four tasks pursuant to a firm fixed price agreement.

The tasks will be as follows:


Task 1. Research plan and detailed report outline. The consultant will conduct background research and collect relevant material. Based on the initial but complete review of the source material, consultant will propose a detailed report outline. The outline should be at least 8 to12 pages, include a proposed survey if one is to be used, and contain sufficient detail to inform the TCRP project panel of what a 75- to 100-page report will contain. This outline should also contain the estimated pagination for each proposed section and/or subsection. This material will be submitted to TCRP for consideration and approval.


Task 2. After approval of the work plan, the consultant should conduct additional research, and case and statutory/regulatory analysis.


Task 3. Draft report in accordance with the approved work plan (including modifications required by TCRP).


Task 4. Revise report as necessary. The consultant should estimate that two revisions will be necessary. One revision may be required after review by the TCRP staff and members of a select subcommittee. Additional revisions may be required after the full committee has reviewed the report.


Funding: $50,000


Payment Schedule


25% paid upon submission and approval of the Task 1 Report.

50% paid upon submission and approval of the Task 3 Report.

25% paid upon submission and approval of the Final Report (following revisions as required by TCRP).


An important factor in rating proposal offers will be the proposer’s commitment to promptly undertake and complete this study.




Proposals should be submitted as a single PDF with the following information and in the following order:

  1. A statement of interest and qualifications.
  2. Resume of key team members along with a description of responsibilities.
  3.  A list of your relevant prior publications (you may enclose one or two samples).
  4. A statement of resources you will allocate to this project; any additions, deletions, or changes you may wish to suggest for undertaking the work; and your requested compensation.
  5. Proposals should not exceed a total of 25 pages (including writing samples).
  6. An executed, unaltered liability statement. Here is a printable version of the Liability Statement.


Proposals are evaluated by project panel members and TCRP staff consisting of individuals collectively knowledgeable in the problem area. Evaluations are based upon the proposers': (1) experience in the subject area; (2) understanding of the work (demonstrated by the commitment of resources); (3) prior relevant publications (including briefs); (4) schedule for completing the work; and (5) price.


Proposals should be uploaded via this link:


by 5:00 (EST) on October 2, 2019. Proposals will not be accepted after this time.


For additional information and guidance, click here: Guidance for Working on NCHRP and TCRP Legal Projects.

Proposals are due not later than 5:00 p.m. on 10/2/2019.

This is a firm deadline, and extensions are not granted. In order to be considered for award, the agency's proposal accompanied by the executed, unmodified Liability Statement must be in our offices not later than the deadline shown, or the proposal will be rejected.

Liability Statement

The signature of an authorized representative of the proposing agency is required on the unaltered statement in order for TRB to accept the agency's proposal for consideration. Proposals submitted without this executed and unaltered statement by the proposal deadline will be summarily rejected. An executed, unaltered statement indicates the agency's intent and ability to execute a contract that includes the provisions in the statement.

Here is a printable version of the Liability Statement (pdf). A free copy of the Adobe Acrobat PDF reader is available at http://www.adobe.com.

General Notes

1. According to the provisions of Title 49, Code of Federal Regulations, Part 21, which relates to nondiscrimination in federally assisted programs, all parties are hereby notified that the contract entered into pursuant to this announcement will be awarded without discrimination on the grounds of race, color, religion, sex, national origin, or disability.

2. The essential features required in a proposal for research are detailed in the current brochure entitled "Information and Instructions for Preparing Proposals" (updated March 2018). Proposals must be prepared according to this document, and attention is directed specifically to Section V for mandatory requirements. Proposals that do not conform with these requirements will be rejected. This brochure is available here.

3. The total funds available are made known in the project statement, and line items of the budget are examined to determine the reasonableness of the allocation of funds to the various tasks. If the proposed total cost exceeds the funds available, the proposal is rejected.

4. All proposals become the property of the Transportation Research Board. Final disposition will be made according to the policies thereof, including the right to reject all proposals.

5. Potential proposers should understand that follow-on activities for this project may be carried out through either a contract amendment modifying the scope of work with additional time and funds, or through a new contract (via sole source, full, or restrictive competition).

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