101 Upper Canyon Loop, Ten Sleep, WY 82442

(307) 213-0223 mike@mikerobinsonllc.com

Expert Witness / Disputes

I am a pre-qualified DRB candidate in Wyoming, Idaho, and Colorado, and am a proponent of the Dispute Review Board / Dispute Review Advisor concepts. Whenever possible, disputes should be resolved as quickly as possible and should involve those closest to the issue. A neutral third party or board should be used if necessary. Resolving disputes through conventional claims processes or litigation is hugely time consuming and inefficient, and engineering and technical details often get lost in what can easily become simply a search for money. 

Some examples of how different approaches to problems (opportunities?) can affect tremendous changes in outcome:

A contractor requests changes to a pre-stressed post-tensioned bridge girder design to reduce the potential for post-stressing problems during construction, and the owner grants the request. During girder fabrication, minor cracking occurs in the area of the change. The owner’s first reaction is to reject the girders and the proposed repairs, until they are reminded why the change was made to begin with. The owner’s engineers spend a few hours working with the pre-cast supplier and the problem is solved. Had this not happened, and the post-stressing concerns been valid, construction on a three-span bridge would have halted, at great expense, while traffic would continue to be routed over a deficient existing structure severely undermined by scour.

A paved patch over a waterline fails within weeks of construction. In spite of obvious material defects, the owner ultimately shares in the cost of repair after two years of negotiations culminating in arbitration. Had the original specification been written to suit the project rather than borrowed from another agency, or had even reasonable inspection reports been produced during construction, not only would the owner likely have avoided the cost, the cost would have been limited to the repair rather than two years of legal and expert witness fees plus the repair.

A Value Assessment team composed of individuals with no previous exposure to a construction project identifies $1.6 million in accepted alternatives to reduce the cost and improve the value of a $20 million construction project.

A contractor has difficulty meeting a paving specification. After several attempts, the contractor deems the specification defective. At this point, all the consultants, experts, material suppliers, and contractors used by both sides cannot overcome the basic stalemate: If the contractor is ultimately successful in meeting the specification, the claim of a defective specification evaporates. If the owner alters the specification to help resolve the problem, the alteration could be seen as admitting to a defect.

Instead of ingnoring disparities between QC and QA test results for an asphalt-rubber overlay and use the claims process to slowly and expensively “solve” the problem, the owner asked for outside review to identify possible sources of error and to resolve the issue. Additional testing was used to fairly resolve the issue promptly and inexpensively.

Rather than carefully evaluate a proposed “or equal” submittal, an owner accepts the submittal and miles of multi-lane city streets are paved with a mix that is over-asphalted, to the point where cardboard boxes adhere to the surface. Three years of partial removals and replacements were required to solve the problem.

A private ranch and hunting outfitter decides to pave their runway, and asks a consultant to assist. While on-site materials together with an on-site hotplant were originally proposed, a review of the project determined the use of an existing material source, hotplant, and mix design offered a better material, a more experienced producer and contractor, and a proven mix design. Increased haul costs were offset by reduced onsite production and mobilization costs. Pre-planning and coordination with the contractor provided for efficient and timely materials testing sufficient for project control.

A major proposed airport in an undeveloped location enlists the support of a team of experts to provide recommendations for processing of onsite materials to provide construction aggregates, as well as reuse of existing materials and grading recommendations. The team provides geotechnical investigation of potential sand and crushed aggregate borrow sites and recommendations for permitting, transporting, and processing materials.

In spite of an obviously-flawed geotechnical investigation and promises to “work with” the contractor during significant differing site conditions on a pipeline project, the owner then refuses to honor the request for additional compensation. After mediation, the owner ultimately pays those additional costs as well as legal and expert witness fees.

A state transportation agency uses outside consultants to evaluate a quality management plan approach to hot mix asphalt production. The consultants assess the approach and offer a number of revisions, assess and report on current industry capabilities as well as compliance with the existing specifications, and serve as liaison between industry and the agency to improve quality and value throughout the state.

To provide fair value and minimize the legal and administrative costs for an eminent domain taking of an asphalt production facility property and a portion of another in a major urban area, the lead law firm sought assistance in evaluating the direct and indirect costs and operational impacts. The consultant was able to help the firm understand how asphalt concrete and aggregate processing facilities operate and how a reduction in parcel size would affect that. An analysis of the impact on a material supplier’s business when one of multiple locations was lost through a taking and the haul costs and effective market areas and how they would change was prepared. The negotiations could then proceed directly to value and terms, greatly reducing the time and expense that otherwise would have been required to reach the same level of mutual understanding.

Prior to letting three major freeway construction projects, a state DOT hires a consultant to obtain all environmental and special use permits for a state-owned materials source through an extremely fast-tracked process. The project director, impressed with the “massive amounts of creativity and technical knowledge,” noted the effort allowed better competition by allowing contractors without local materials sources to bid against those who did, and figured the overall savings were “likely to be in the millions.”

Prior to several major projects requiring large quantities of high quality materials, an owner sought assistance in developing a list of all potential suppliers of cement, flyash, and aggregate, culling that list to those likely able to meet both production and quality requirements, and then further culling the list to those suppliers most likely to satisfy the needs of the projects. Identifying potential problems prior to bid reduced the potential for serious material and delay issues during the projects, and had the added benefit of educating suppliers so they would better understand the project demands prior to developing pricing and proposals.