Legal Problems Arising out of Highway Programs. Topic 26-02. Analysis of Arbitration and Holdings in Construction Disputes

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.


  • English


  • Status: Completed
  • Funding: $100000
  • Contract Numbers:

    Project 20-06, Topic 26-02

  • Sponsor Organizations:

    National Cooperative Highway Research Program

    Transportation Research Board
    500 Fifth Street, NW
    Washington, DC  United States  20001

    American Association of State Highway and Transportation Officials (AASHTO)

    444 North Capitol Street, NW
    Washington, DC  United States  20001

    Federal Highway Administration

    1200 New Jersey Avenue, SE
    Washington, DC  United States  20590
  • Project Managers:

    Chisholm-Smith, Gwen

  • Performing Organizations:

    Capital Project Strategies, LLC

    Reston, VA  United States 
  • Principal Investigators:

    Loulakis, Michael

  • Start Date: 20220901
  • Expected Completion Date: 20230831
  • Actual Completion Date: 20230831

Subject/Index Terms

Filing Info

  • Accession Number: 01787234
  • Record Type: Research project
  • Source Agency: Transportation Research Board
  • Contract Numbers: Project 20-06, Topic 26-02
  • Files: TRB, RIP
  • Created Date: Nov 2 2021 3:06PM