Wednesday, December 17, 2025

Message from the Chair: Joe Imperiale (Volume II)

When I last wrote, I had just stepped into the role of Division 1 Chair, and now, somehow, 2025 is already coming to a close. Chairing Division 1 has confirmed many things I already knew about the ABA Forum—and taught me a few new ones. Let me share seven lessons learned that recap 2025. 

1. The Division 1 Steering Committee is determined to leave Division 1 better than they found it.

As with anything great, it starts with the people. If Division 1 looks like a well-oiled machine from the outside, it’s only because of the talent and hard work of its Steering Committee. This group of talented construction lawyers from around the country are at the forefront of construction litigation and dispute resolution trends and share their experience with Division 1’s significant membership through their work on the Steering Committee. The Division 1 Steering Committee currently consists of the following lawyers:

The Steering Committee members help put together a remarkable amount of programming that is offered by Division 1, including:

  • The Dispute Resolver blog, providing weekly content on construction disputes, trends, and practical tips.
  • Toolbox Talks, our web-based, half-hour, lunchtime webinars throughout the year on topics relevant to construction industry dispute resolution.
  • Three-hour practicums at each national conference, giving construction litigators real-world, hands-on skills and lessons from experienced practitioners and industry experts.
  • National conference lunch programs on timely and practical topics.
  • Division 1 social events that keep our community connected, collaborating, and occasionally arguing about who has the best expert cross-examination war story.

Delivering this much high-quality content is no small task, and I thank them all for their service. 

2. The future is bright for Division 1.

Having a successful division takes more than just a Steering Committee
and necessitates that other members of Division 1 step up to get involved. The number of talented people whom I see raising their hands for the first time to participate in Division 1 is genuinely heartening. 

Among those who have stepped up to lead initiatives: 

  • Wendy and Sean addressing the Division 1 lunch in Louisville
    John Gazzola (John Gazzola | Troutman Pepper Locke) serves on the Toolbox Committee, organized our social in Louisville, and is organizing our practicum in Dana Point—proof that if you do a job well in Division 1, we reward you with…more jobs. 
  • Doug Mackin (Doug Mackin | Cozen O’Connor) serves as Division 1’s liaison to the Forum’s publications committee, plugging Division 1 members in writing opportunities.  

I am undoubtedly leaving people out, and there are more contributors mentioned below, but with this kind of energy and expertise in the ranks, Division 1 is in very good hands for years to come.

3. THE DISPUTE RESOLVER is the source for construction litigation and industry trends. 

If you’re not already reading The Dispute Resolver, this is your gentle nudge to start. It is, without question, a go-to source for:

  • Timely updates on construction litigation
  • Industry trends and practical insights
  • News on the business of Division 1 and the Forum

The blog runs like clockwork, regularly putting out high-quality content. Marissa Downs and Jessica Knox deserve enormous credit for this. They have taken a blog founded by Tony Lehman and Tom Dunn and, dare I say it, brought it to its pinnacle under their leadership. Thanks to Marissa and Jess’s upcoming editorial team (many of whom are returning veterans) for their great work and dedication to the upcoming blog year: Andrew Vicknair, Brendan J. Witry, Brett Burney, Dakota (Knehans) Atuan, Debrán L. O'Neil, Joel Bertet, Lisa D. Love, Patrick McKnight, Stuart Richeson, Troy Mainzer, Tyler Lloyd and Thanh Do.  

4. Division 1’s Toolbox Talks are your lunchtime source of construction litigation information.  

The number of people tuning in for our 30-minute, lunchtime quick-hitters is a testament to both the topics and the presenters. Whether it’s AI, procurement, or the latest twist in dispute resolution, our Toolbox Talks have become a great opportunity to get involved and learn something new. 

Brett Hensen and his committee have done an outstanding job curating programs that are:

  • Short enough to fit into a busy day
  • Substantive enough to be truly useful
  • Popular enough that people keep coming back for more

Thanks to Brett’s TBT Committee: John Gazzola, Thomas Cuneo (Thomas Cuneo | Ankura.com), Michael Martin (Michael Martin | VERTEX), Steve Warhoe (Stephen P. Warhoe | Long International) and Matt Argue (Matt Argue | One Mediator, Inc.) for their great work.  And I know that Dana Chaaban and Eric Meier will do a great job leading this effort moving forward. 

5. Practicums, celebrating their 10-year anniversary, continue to deliver.

Chris, Matt and Harper speaking at the Fall Practicum
My first practicum as Division 1 Chair featured Chris Dunn (Chris Dunn | Winstead PC), Matt Gillies (Matt Gillies) and Past Forum Chair Harper Heckman (Harper Heckman | Maynard Nexsen), who delivered a master class on “Negotiating the 10 Most Common Contract Provisions to Minimize Risks and Avoid Disputes” from the perspectives of the Owner, Contractor, and Designer. 

It was exactly what a practicum should be:

  • Practical
  • Lively
  • Rooted in real-world experience
  • And full of those “I’m going to steal that clause/argument/example” moments that make in-person programming so valuable 

If you haven’t attended a practicum yet, consider this your official invitation for Dana Point, California on February 4 Forum on Construction Law Events.

6. The ABA Forum on Construction Law is an unrivaled professional community.

If there is one thing this role has reinforced, it is that the Forum is a truly special professional community.

Where else can you:

  • Advance your career
  • Deepen your expertise
  • Meet people from across the country (and beyond) who do what you do
  • Learn in beautiful locations 

The Forum is full of smart, generous, and genuinely good people. When we needed someone to join Sean Dillion at our Louisville lunch program, past Chair of the ABA Forum, Wendy Venoit, stepped right in and said, “I’ve got it”, sharing pearls of wisdom from her extensive experience. It’s a place where competitors become collaborators, mentors become friends, and “networking” often looks suspiciously like having fun.

7. I am tremendously grateful for the opportunity to lead Division 1.

A lot of work by a lot of people goes into running Division 1. From our Steering Committee, to our presenters and writers, to our volunteers and participants—this truly is a group effort.

Being Chair of Division 1 has been a privilege. It is a pleasure to help lead this group of construction professionals, advocates, problem-solvers, and all-around good people. I am enjoying every moment of it and am constantly impressed by the creativity, commitment, and generosity within our Division.

Happy Holidays and Cheers to the New Year

I wish you and your families a joyful, peaceful holiday season. Here’s to a wonderful holiday season and to an even brighter, busier, and better 2026 for Division 1 and the ABA Forum on Construction Law.

Author Joe Imperiale has dedicated his practice exclusively to the construction and manufacturing industries for 20 years. He represents owners, EPC contractors, construction managers, general contractors, and subcontractors in disputes on a wide array of construction projects, and can be contacted at Joseph.Imperiale@Troutman.com.

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Thursday, December 11, 2025

Bridging the Information Gap of Alternative Delivery Methods on Public Projects

In almost all corners of the country, municipalities, counties, and states alike have historically employed a design-bid-build approach to public projects. While the delivery method lends itself easily to selecting the lowest bidder for both the design and construction phases of projects, it also excludes other, alternative methods that may be better suited for projects that require contractor involvement during the design phase, a phased approach to completion, or partnership between the public entity and private investment. But implementation of new delivery methods has posed a problem in some areas due to a lack of familiarity. This blog post proposes a simple solution.

As early as the mid-late 1990s, changes in federal procurement laws allowed for the adoption of design-build, one option for alternative delivery, for public projects. Since that time, states, municipalities, and other public entities have followed suit. Today, you can find the use of design-build, progressive design-build, A + B, CM/GC, CMAR, and P3 just to name a few of the delivery methods that have been adopted in various states. These alternatives help provide options to public entities to find the right fit for their project.

While many contractors in the private sector that routinely employ these different methods are familiar with their mechanics, the stakeholders who have recently adopted these new approaches may not be. This unfamiliarity with the dynamics of different delivery approaches can risk taking a new and potentially more efficient new way of tackling a project and shoehorning it into an older mode of thinking. This results in the loss of any potential benefit that the public (and the public fisc) could receive from a better way of doing things, but it generally creates delays in completion and higher costs than if the old standard—design bid build approach—were used.

Some of growing pains also come from learning something new. On CMAR projects in which we have recently been involved, we see owners and designers approaching their newfound involvement in the same way they always had. The collaboration between design and construction was tempered because of a misunderstanding about how these different paths would run. The result was that the design, value engineering, and constructability exercises were chopped up, at least until everyone—not just those familiar with the mechanics of the CMAR process—understood that these activities would run concurrently. Once that happened, the benefits of this new system began to emerge. As time went on, and all the stakeholders became more comfortable with their new dynamics, it has resulted in the exact goal of a CMAR project: a project completed on time, within budget, and with very few surprises.

This recent example embodies a deceptively simple solution: The key way to ensure that newcomers to the alternative delivery methods in the public sphere maximize the benefits is education. This rather obvious answer is not worth much if the people who understand how these systems work do not take the time to help educate those who are new to them. Thus, the trick, is for those who are familiar to help those who are not. Undoubtedly, this may create more work for contractors who find themselves with owners and designers that have not been part of such a process. But this may be the wrong view. Contractors succeed when they can avoid the project pitfalls of delays, acceleration, unforeseen impacts and costs, and disputes. So when faced with an alternative delivery method and a team unfamiliar with how to use it, the contractor should consider that the educating of its collaborators is really nothing more an investment in how to successfully implement new approaches for the benefit of everyone, including the contractor.

__________________________________________________________

Author, Michael S. Blackwell, is an equity partner with Riess LeMieux, LLC. Michael represents a wide variety of clients, ranging from general contractors, subcontractors, owners, developers, insurers, and sureties in the construction industry, and his practice touches on all manner of disputes and issues that arise during construction or business. Michael regularly lectures on matters affecting construction clients, engineers on ethics and liability, and construction managers and public entities on changes in Louisiana construction law.

Editor, Stu Richeson, is an attorney with Riess LeMieux in New Orleans, primarily focusing on commercial litigation with an emphasis on construction matters.

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Wednesday, December 3, 2025

Civil Megaprojects: The Evolving Use of Dispute Prevention and Collaborative Delivery Methods in Public Contracting

Civil megaprojects are large, complex ventures in civil engineering and construction that typically cost over $1 billion to construct. These projects generally have significant and long-lasting impacts on the economy, environment and society, and involve multiple public and private stakeholders. Typical civil megaprojects include infrastructure projects, such as highways, bridges, tunnels, airports, dams, power plants and public buildings, which require extensive planning, design, coordination and construction over an extended period of time.

In the United States, there is over $500 billion worth of civil megaprojects in the pipeline, with an average of four megaprojects per month in 2024 and a total monthly value of $9.2 billion.[i] Here are some recent examples of civil megaprojects:

The Hudson Tunnel Project (a portion of the Gateway Program), under construction in the states of New York and New Jersey, involves the construction of two new tunnels and the renovation of aging rail tunnels used by Amtrak and New Jersey Transit that were damaged by Superstorm Sandy along the Northeast Corridor. This has been deemed one of the most important infrastructure projects in the country. It is projected to be completed in 2027 at a cost of over $16 billion.[ii]

The Brightline West High-Speed Passenger Rail System is a 218-mile high-speed rail line connecting Southern California to Las Vegas. The project was originally estimated to cost $12 billion but recent estimates have reached over $21 billion. The project was planned to be completed in 2028 to align with the 2028 Los Angeles Summer Olympics but is currently scheduled to be completed by late 2028 or early 2029.[iii]

The Francis Scott Key Bridge Rebuild is a project to build Maryland’s first highway cable-stayed bridge to replace the steel arch bridge that collapsed after being struck by the MV Dali, a cargo ship, in 2024.[iv] Original estimates for the bridge rebuild were approximately $1.9 billion. Current estimates suggest that the rebuild will exceed $5.2 billion and be completed in late 2030.[v]

Given the astronomical cost of civil megaprojects and their scale, complexity and extended project schedule, as well as the high stakes involved, disputes and claims are inevitable. Based upon a recent review of over 2,000 megaprojects with an average budget of $1.28 billion in 107 countries, the top 10 contract-level causes of disputes and claims on civil megaprojects are (1) changes in scope, (2) incorrect design, (3) late issuance of design information, (4) incomplete design, (5) contract management or administration failure, (6) poor management of subcontractors and suppliers, (7) contract interpretation issues, (8) deficiencies in workmanship, (9) late or restricted access to site work phase and (10) unforeseen physical conditions. The results of these disputes and claims over the projects surveyed accounted for total additional time to the project schedules of 994 years (an average schedule overrun of 16 months, or 66.5% of the plan schedule) and total additional costs of approximately $84.5 billion (an average 33.2% increase in the project budget).[vi]

However, these contract-level disputes do not generally exist singularly, nor are they insulated from other tensions that can disrupt advancement and collaboration. As we have recently seen, geopolitical risks, such as national security, political unrest, military impacts, unanticipated tariffs on construction materials and trade restrictions, exchange rate fluctuations, changes in global trade and supply chain logistics, cyberattacks on critical infrastructure, changes in funding policies and other market conditions affecting viability, also create conflicts about what party bears the burden of such risks. While such risks increase construction costs, cause delays and threaten the economic stability of projects, civil megaprojects continue to be proposed, developed and completed.[vii]

Although parties have attempted to draft favorable language in their contracts to address anticipated tension points and the burdens associated with various foreseeable risks, owners and contractors continue to use robust tiered – progressive dispute prevention and resolution structures in an attempt to quickly and in real-time resolve issues before they negatively affect the cost or schedule of a project. 

Parties have used issue resolution ladders to initiate the resolution of an issue at the lowest possible level, successively elevating the dispute from the project field level to the engineer/project manager level, management level, senior management level or higher level until the issue is either resolved or has little impact on cost or schedule.

Parties have also used self-facilitated or third-party-facilitated partnering to improve group dynamics and strengthen collaboration, jointly retained independent experts to opine on discrete technical issues in dispute, and binding and nonbinding dispute prevention and resolution boards with experience in construction, law and engineering to provide advisory opinions or reasoned recommendations.

If these early attempts to resolve issues are unsuccessful, parties have used third-party evaluative mediation to facilitate communication and identify settlement options, followed by arbitration to obtain binding resolutions.

In addition to implementing robust dispute resolution processes, parties have begun to apply integrated project delivery (IPD) to create collaborations and reduce disputes among owners, architects, contractors and subcontractors. IPD fully integrates project teams to take advantage of everyone’s knowledge to maximize project outcomes. It is the highest form of collaboration because all three parties (owner, architect, constructor) are aligned by a single contract. IPD can also integrate and apply practices or philosophies to more traditional delivery approaches, such as construction manager (CM) at risk, design-build or design-bid-build (where the owner is not a party to a multiparty contract). In addition to not having a multiparty contract, IPD as a philosophy features “traditional” transactional CM at risk or design-build contracts, some limited risk-sharing (e.g., savings splits) and some application of IPD principles.[viii]

IPD projects involve collaborative, integrated teams working to accomplish goals by using building information modeling (BIM) to integrate information and provide dependability, consistency and interconnectivity to achieve better designs, better projects and better value. Decisions are made in real time by consensus, thereby avoiding conflicts and risks, and performance incentives are shared.[ix]

Although many of these alternative dispute resolution (ADR) processes and IPD philosophies may be used in contracts between the private sector as a matter of agreement, the use of any of these processes in public contracts for megaprojects will be limited by the law in the state in which the project is located.

For instance, with regard to ADR, as of 2024, only 15 state departments of transportation used some form of dispute resolution/review board as part of their dispute resolution process, 18 state departments of transportation were expressly authorized to use mediation and 16 state departments of transportation either had an express ability to arbitrate construction disputes based on their written processes or were required to arbitrate by statute.

Thirty-three departments of transportation and their applicable state laws provided that contractors can sue in the state’s general jurisdiction courts, with litigation in the state courts being the exclusive remedy; 7 other states had created special bodies that hear contract disputes with state agencies, with proceedings similar to those used in a court of general jurisdiction;13 departments of transportation used administrative boards as a means of resolving contractor claims.[x]

As the public contracting process continues to strive for a more collaborative process, the progressive design-build (PDB) project delivery system, which is widely used in the private sector, is a precursor to the IPD delivery method. Currently, 35 states fully or widely permit the use of the PDB delivery method, authorizing the procurement of the designer-builder prior to setting an overall contract price. Twelve states permit the limited use of the PDB method. One state (Pennsylvania) permits the use of the design-build method, but not the PDB method. Two states (Alabama and Wisconsin) prohibit the use of both delivery systems.[xi]

As the philosophy regarding public contracts and the design-build and PDB delivery methods evolves, it is anticipated that the state statutes regarding the use of ADR  processes and the use of IPD will also evolve to permit public owners to better manage conflicts and share in the risks and rewards of the project beyond traditional collaborations.

Lisa D. Love, Esq., FCIArb., is an arbitrator, mediator and neutral evaluator with JAMS and a member of its Global Engineering and Construction Group. She is a commercial transactions attorney with extensive experience in real estate, construction and finance. She has worked on most sides of a transaction—including as an owner, lender, equity investor and public agency representative—and brings a broad real estate, construction and commercial transactions background to her work as a neutral.

 

Ms. Love has served as a neutral in complex commercial matters and legal disputes involving construction defects, delay claims, breach of contract, investments, corporate finance, cryptocurrency, securities, mergers and acquisitions, energy, licensing, franchises, commercial real estate and antitrust.

Disclaimer: The content is intended for general informational purposes only and should not be construed as legal advice.  If you require legal or professional advice, please contact an attorney.

[xi] 2025 Design-Build State Statute, Design Build Institute of America

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