Judicial Assessments on Construction Projects
-------Jonathan You

Construction projects can often become complicated because there can be many parties involved and several layers of administrative oversight. When things go awry or the levels of approvals grow increasingly more complex, parties begin to point fingers at one another. One method of resolution in these matters is the use of a judicial assessment on a construction project, which forms the basis for resolution in the event it is needed later.
In many construction contract cases, it is necessary for the Engineering Department to assess all or part of the project. This "Judicial Assessment" is usually the basis for the court or the arbitral tribunal to make an award. However, change orders and other considerations can often alter the progression of a project from the original contract. A Judicial Assessment made by the Engineering Department needs to keep up with these changes lest it become outdated. If not, one or even both parties to the case might consider the judgment unfair.
Having had such experience, the writer is well aware of the difficulties that exist in such matters. Since the claim amounts in these cases are sometimes very large, and because the life of a construction project is constantly evolving, ensuring the validity and timeliness of the Judicial Assessment is very important. The following are a few points to consider:

1. All parties may reach unanimity through consultation.
Generally speaking, a Judicial Assessment can be carried out if the court or the arbitral tribunal considers it necessary. The assessment result can be legally binding with the parties' stipulation. All matters, such as how to choose the assessment department, the content and the extension of the assessment, are also decided by the parties. If all the parties have agreed on those matters, the assessment result can be adopted by the court or the arbitral tribunal.

2. The court and the arbitral tribunal should coordinate their functions and powers.
The court and the arbitration tribunal should pay attention to the operation sequence when deciding the assessment department, the content and the extension of the assessment. Two extremes can develop when this does not occur. One is that every assessment result will be adopted without particular attention to the various elements of the project, which might result in an unfair judgment. The other is an assessment that is undertaken whether it is needed or not, which costs the parties a great deal for simple waste paper. I think the principle to be used should be to examine how much of an assessment is necessary for the purpose of making a ruling. For example, if the parties have agreed on the engineering budget, that part of the project needn't be judicially assessed. Forcing a full assessment on a project is useless because if the court or the arbitral tribunal thinks that the project still needs to be assessed (even though the parties have agreed on its budget), then the parties are thrown into a new budget that they did not agree (or plan) upon.
3. Ensure the content and the extension of the Judicial Assessment.

The "content" of a Judicial Assessment should include the total cost of the project, cost over-runs, etc. The "extension" would be the whole project, an agreed-upon part of the project (with the exception of subcontracts) or extra parts (change orders). When a judge is going to use or demand a Judicial Assessment he should know whether a Judicial Assessment is necessary for judgment, whether it has been requested by the parties, and know the case well enough to be able to satisfactorily define the cooperating liability of the parties. This latter element requires the cooperation of the parties in order to make matters clear for the court. Cross-examination is one useful tool for this and is very essential because it can provide a foundation (rather than guesswork) for the assessment department to use the materials related to the case. When a party provides new evidence during the period of the assessment, the court or the arbitral tribunal can preside over a hearing of witnesses so that facts come out that keep the judicial assessment on course.