The National Academies

NCHRP 20-06/Topic 26-02 [Active]

Analysis of Arbitration and Holdings in Construction Disputes
[ NCHRP 20-06 (Legal Problems Arising out of Highway Programs) ]

  Project Data
Funds: $100,000
Staff Responsibility: Gwen Chisholm Smith
Research Agency: Capital Project Strategies, LLC
Principal Investigator: Michael C. Loulakis
Effective Date: 9/1/2022
Completion Date: 8/31/2023
Comments: Research in Progress

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


Arbitration can be a useful tool to save time and money in resolving disputes concerning the construction of transportation projects, but the process can be opaque and risky since the results are rarely made public. State departments of transportation (DOTs) would benefit from a database of the various dispute resolution processes being implemented, and the outcomes of those processes that could be used to spot trends in the processes and the results. The research team will ask state DOTs to share what processes they use to resolve construction disputes and the results from those processes, while working closely with the states to protect confidential and privileged information. Many of the available court records and reports may have sections redacted, but even heavily redacted information may be useful to help spot trends in processes and results since very little data currently exists.




The objective of this research is to produce a legal research digest that includes the following:
1.    What state statutes or regulations are in place governing resolution of disputes?
2.    What processes are DOTs using for resolution of construction disputes (e.g., contracting officer decisions, executive directors or transportation commission decisions, mediation, dispute review boards (binding) or panels (non-binding), arbitration (binding, dispute size limits, etc.), and litigation)?
3.    What rules are used for the different processes (e.g., timing, makeup, and administration of panels, enforcement of contract clauses) and how do the rules affect the outcome of disputes?
4.    Analysis of binding dispute process decisions to determine whether it’s a useful tool to save time and money for construction disputes. Identify: (1) contract provisions that arbitrators are typically asked to enforce; (2) fact patterns and other issues that cause arbitrators to deviate from settled law and contract terms; (3) levels of proof required to prove damages; (4) percentage of holdings that materially deviate from settled law; and (5) differences in the levels of discovery conducted between the arbitration hearings and similar court hearings. 


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 about 8 to12 pages, include a proposed survey if one is to be used, and contain sufficient detail to inform the NCHRP 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 NCHRP 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 TRB).


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 NCHRP staff and members of a select subcommittee.  Additional revisions may be required after the full committee has reviewed the report.

Research in Progress.

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