Resolutions of disputes arise during the construction phase: a compari̇son on kik and fidic documents

One of the biggest problems of the construction industry is the problem of disputes. These disputes usually arise between the contractor and the employer after the signing of the contract and during the construction process and they negatively affect the process. Disputes are quite common in projects where the public sector, which is the largest employer of the Turkish construction sector, is involved as the employer. If these disagreements can not be prevented before they occur or can not be resolved quickly after they occur, the main project objectives, which are time, cost and quality targets, are negatively affected. This situation contradicts the principle of efficient use of public resources. Turkish Public Procurement Law (KIK) and other legislations related to this law are used in construction projects where the public sector is a party. These documents contain the procedures to be followed if a dispute should occur. However, these procedures are insufficient to resolve disputes. On the other hand, the United Engineers Contract Documents Committee (Fédération Internationale des Ingénieurs Conseils- FIDIC) sets a positive example in this regard. This Committee develops and applies standard procedures for dispute resolution and achieves successful results. FIDIC published a new edition of its standard forms in 2017. In this edition dispute avoidance and adjudication board (UKKK) has emerged, which aims to resolve disputes before they occur. This board is established at the contract stage. UKKK is part of the process with standard site visits and meetings and their aim is to resolve a potential dispute between the employer and the contractor informally. In cases where it is not possible to avoid a dispute, the problem is resolved by quick intervention of this board. Arbitration can only be filed if the parties are not satisfied with the UKKK decision. The aim of this research is to study the dispute boards and to determine the deficiencies of the KIK by comparing the dispute resolution processes defined in the KIK and FIDIC documents regarding cost, time and quality criteria. KIK, Public Procurement Contracts Law and the Contract for Construction Works, General Specification for Construction Works and Regulation on Working Procedures and Principles of the Higher Board of Science, which are used in construction works when the public sector is a party, were included in the study. On the FIDIC side, the Red Book, general articles and sub-documents, which are in accordance with the traditional project delivery system that is mainly used by the public sector, are included in this content. In this study the document analysis method, which is one of the qualitative research methods, was used. With this method, firstly, the Turkish construction legislation and FIDIC documents were analyzed in terms of the dispute resolution process. In the next stage the comparative analysis of the FIDIC and KIK dispute resolution process, in terms of time, cost and quality criteria was made. As a result of the study, it was determined that the issues related to dispute resolution in the KIK are spread in different documents and there is an inequality between the contractor and the employer. When the KIK and FIDIC documents were compared in terms of cost, it was observed that no budget was allocated for dispute resolution in the KIK, and the use of UKKK in FIDIC caused an increase in the initial budget of the project. However, with this additional cost, the litigation costs that will occur in the future are prevented. When compared in terms of time, application to the Higher Science Board for dispute resolution in the KIK can be made and the dispute can be resolved in a short time. However, this application is not mandatory and the main dispute resolution methods are traditional. Traditional methods take a long resolution time, they are costly and damage the relationship between the parties. According to FIDIC the UKKK is established during the contract phase, it both ensures avoidance of disputes and resolves unavoidable disputes quickly. It reduces the need for arbitration. When evaluated in terms of quality, it has been determined that the use of UKKK has a direct and indirect positive effect on the quality of the project. The results of the study reveal that the adaptation of the concept of the dispute board used by the FIDIC to the KIK legislation will benefit the conflict problem in public construction projects in terms of time, cost and quality. This practice will also significantly reduce the workload on the courts. At the same time it is predicted that the use of UKKK will become more widespread, as the private sector in Turkey also uses the standard contracts of the KIK.