The ICCP Welcomes New President, Paul Gibbons

The ICCP is proud to announce that a new president has been selected. Paul Gibbons will be replacing outgoing president, Keith Kirkwood, following Keith's year of leadership.

"I am extremely proud and feel privileged to be President of the ICCP. I feel that as an industry we can do so much better in the development and presentation of entitlement. This will ensure that disputing parties can resolve their differences more quickly, based on the credible facts of their case, which are presented in the right way. I look forward to providing my thoughts and to working on initiatives on how we can deliver this as an institution, for the benefit of our members."

Paul Gibbons

Paul has been an active member of the ICCP community since he joined as a Fellow in early 2017. He immediately put himself forward to mentor Associate members. He volunteered to sit on the Steering Committee when it was established in November 2018 and was subsequently voted in by members. As Managing Director of his own consultancy practice in the UK, Paul brings a wealth of knowledge and experience to the role of president. Moreover, as is evident by his impressive list of qualifications, including but not limited to:

  • BSc (Hons);
  • MSc (Const Law & Arb Kings);
  • FRICS;
  • FCInstCES;
  • FICCP;
  • PAAE;
  • MCIArb;
  • MCIOB;
  • RICS APC Assessor;
  • Practicing Associate of the Academy of Experts; and
  • Advanced Professional Award in Expert Witness Evidence,

Paul believes that we must achieve the highest levels of expertise and professionalism to make a positive impact on our industry. As such, we believe that he is very well-placed to contribute to the growth of the ICCP and we are delighted to welcome him to his new role.

If you would like to get in touch with Paul, he can be contacted on paul.gibbons@decipher-group.com.

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The Elements of Construction Claims Analysis | Five Keys to Expedite Resolution

As technology enables building projects to achieve increasingly complex designs, as construction schedules continue to accelerate, and as the pricing and delivery of materials grow more volatile, one thing remains constant: construction claims.

There are numerous facets to the complete and clear understanding of a construction claim. How does one systematically determine the proper payment of money, accurate change in contract time, or other relief when analyzing a claim? The significance of the answers to these questions should not be underestimated, as it directly impacts the settlement.

Underscoring the need for clarity are the alternatives to claim settlement: dispute arbitration or litigation. These paths to resolution are costly in terms of time and money, a reality that can be appreciated by both owners and contractors. In 2015, the median timeframe from filing with the American Arbitration Association to award was 232 days; the median length of a jury or bench trial was slightly more than 2 1/4 years.

As far as the bottom line goes, the hourly or per diem fees charged by lawyers and arbitrators are considerable (and vary widely). Notably, in litigation, there is no time limit on the discovery process, while in arbitration proceedings, discovery is often limited to document exchanges and a relatively small number of depositions, if any.

In my experience, zeroing in on five key elements can help put a claim into sharp focus and expedite its analysis and, ultimately, its resolution.

1.   Determine entitlement under the contract

I am surprised at how frequently the narrative of a claim does not address the contract provision that defines it. The reason that this is important is that the provisions of a change-order clause, delay clause, suspension of work clause, unusually severe weather clause, no damages for delay clause, or changed site condition clause all have different requirements for:

  • notice
  • what the contractor may be entitled to for quantum, and/or
  • what is allowed for delay.

2.  Verify timely notice was given

A claim analysis must verify that timely and adequate notice was given of the claim incident. The time allotment for this can vary, depending on the nature of the claim. An example of how timely notice may differ can be seen when comparing a Notice of Claims clause (AIA Document A201 – 2017, Section 15.1.3)—which requires notice within 21 days—with a Changed Site Condition clause (Section 3.7.4), which calls for notice within 14 days.

Not observing this detail in the contract-stipulated schedule puts at risk the right to file a claim and raises the possibility that the claim could be waived altogether. Relatedly, claimants are well advised to use any contractually authorized means of delivery (a specific overnight carrier, for instance) and, if possible, obtain a proof of receipt when submitting their claim notice.

3.  Calculate quantum per the contract with supporting documentation

As with the first two key elements of claim analysis, a close reading of the contract is also central to calculating quantum. The contract may allow or restrict costs when a claim is submitted. When using AIA Document A102 – 2017 Standard Form of Agreement Between Owner and Contractor, where the basis of payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price, Article 7 identifies the costs that can be included and Article 8 defines the costs that are not to be reimbursed.

In a contract with a no damages for delay provision, no quantum is allowed for a delay event.
Under a suspension of work clause claim, it is typical to only allow increased field costs, but no additional profit on the increased costs.

Many change order clauses restrict mark-up (overhead and profit) on self-performed work or subcontractor work. Therefore, correctly understanding the basis of entitlement under the terms of the contract is critical to how the request for additional compensation is calculated.

4.  Analyze delays through the lens of project schedules and contemporaneous records

The longest sequence of required construction activities to bring a project to completion is known as the critical path. Unless remedial steps (such as resequencing work) can be taken, delays to any one critical path can push the entire project past its deadline. Non-critical activities that can be absorbed by the schedule without affecting the on-time completion of the project are said to “float.”

Any request for a time extension necessitates a schedule review to ensure it is achievable within the constraints of the project. Claims that focus on delays should be analyzed to determine the specific category of the event. Determining what activities constitute the critical path, how much float is associated with non-critical activities, and the nature of the delay—is it excusable, non-excusable, compensable, non-compensable, concurrent, a critical-path impact, or consumption of float?—must be taken into account when evaluating a claim.

An excusable delay is a delay for which the contractor is entitled to an extension of the contract time for completion. Plainly put, the contractor’s late completion is excused.

A compensable delay entitles contractors to not only a time extension, but also to compensation. The compensation takes the form of an adjustment to the contract price for any added costs that flowed directly from the delay.
Unexcused delays are those for which the contractor has responsibility, and that entitle the contractor to neither a time extension nor any added compensation. If the contractor has not completed the work when required and the delay is unexcused, the owner will be entitled to its damages for the contractor’s failure to complete the project on schedule.

It is recommended that any critical-path schedule be tested with other contemporaneous project records—such as daily reports—to determine the veracity of the schedule and claimed delay.

As critical as they are, daily reports are often a weak link in the paper trail because they fall short in their level of detail. In addition to documenting weather conditions, describing the work performed, and tallying laborers and equipment on the job site, daily reports should also track the time spent—by personnel and equipment—by work categories or cost codes. Reports should present a consistent quality of information and detail on both the typical workday and days when delays or interruptions occurred. It should be stressed to all partners on the job that keeping current with daily reports is required, as back-dated documents may not be accepted as evidence by courts.

5.  Ensure there are no waiver/estoppel issues

Finally, claims need to be scrutinized to determine if there were any waiver or estoppel issues that would bar them. The most common examples include conditional and unconditional lien waivers. An unconditional waiver surrenders the right to file a lien regardless of whether one is paid or not. A conditional waiver surrenders the right to file a lien upon payment.

Beyond the contract, the language used in change orders may waive and release claims for additional costs or time, and should always be reviewed. This area of analysis—the Achilles heel of an otherwise valid claim—is frequently overlooked.
Should (or, more realistically, when) circumstances arise that call for the terms of the contract to be altered, the owner, contractor, and architect will evaluate the request for a change and attempt to reach an agreement on how it will impact the project, the budget, and the construction schedule. If consensus is achieved, the architect prepares the change order, setting forth all of the adjustments agreed to by the parties, who then sign off on the order. Once the parties execute the change order, it becomes a formal modification to the contract. Amendments of this kind—often made under pressure to complete the job—should be one of the first items to be examined in the event a construction claim is filed.

This examination may be tricky, and the potential for misreading the details can be even greater when the owner and contractor do not see eye-to-eye on the terms of a change order, raising the bar for construction claim analysis. The recourse to the situation, which is outlined in AIA documents, is for the owner and architect to issue a construction change directive (CCD). This enables the owner to change the work required by the contract documents and prescribes how the owner can adjust the contract price because of the change.

If the contractor disagrees with the pricing set forth in the CCD, the architect has the authority to determine interim pricing based on the reasonable costs associated with listed categories of expenses associated with the changed work. The contractor must then proceed with the work and the owner must make all payments in accordance with the architect’s interim pricing. Either party may challenge that pricing by asserting a claim under Article 15 of the contract. While this procedure provides a framework for resolving change-order-related problems, it can also pose pitfalls for the unwary claim analyst.

In this article, I promised to explore the five key elements in a conscientious claim analysis process. But I am going to add a sixth point to the list: meticulous documentation. This is the bed-rock of every dispute situation, and it goes beyond having a well-written contract. From archiving emails and keeping meeting notes to detailed project reports, maintaining a complete and thorough record of communication throughout all phases of a project is the foundation of making a credible claim. Conveying the importance of this to colleagues and clients solidifies your—and your firm’s—reputation as a fair and skilled analyst, and helps builds trust among all parties.

Special thanks to John T. Jozwick, Esq., Executive Vice President and General Counsel for Rider Levett Bucknall North America. This article was written by John and has been republished on the ICCP's blog with his permission.

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Explaining The Role Of The Contract Professional

During my 10-year career lots of people have asked me about my role as a contract professional.

What do you do?

What is the role of a contract manager?

And rarely have I seen a person being able to explain the role of contract managers.

Even contract professionals themselves have the same question about their role. Tim Cummins for example, the President of IACCM says in an article in 2018:

“I am amazed at how many people want an answer to this question [What is the role of a contract manager?]. More than 350,000 have read my blog on this particular subject. Is it because they don’t know the answer, or perhaps want reassurance that they are doing the right things?”.[i]

So, why is it so difficult for people to understand what contract professionals do? And why is it so hard for us to explain our role to other people? In my opinion, there are six reasons.

1. There aren’t many university programs for contract professionals

University degrees that have a direct route to a professional role are easier to understand. Want to be a lawyer? Get a law degree. Want to be a Civil Engineer. Get a degree in Civil Engineering.

However, there aren’t many university degrees specifically designated to contract management. It’s often those with various educational backgrounds, such as law, business and engineering, that end up transitioning into contract management roles.

Recently, IACCM introduced a Masters / LLM in Commercial and Contract Management. There are also other programs including a Masters in Procurement, LLM in Contracts and Arbitration, LLM in Contract Law, etc. but they are not specifically focused on contract management and they are not known amongst people who are passionate to learn about contract management.

Even with such higher learning programmes, it’s likely that many will still come to the contract management role from other backgrounds. The key is whether they then appreciate the need for achieving professional status and recognition by enrolling in further higher education.

2. The role of the contract professional differs from industry to industry. Even in the same industry, they work in different departments often with different roles.

In construction projects, there are quantity surveyors, superintendents [ii], contract administrators, contract managers, contract directors and commercial directors with more or less the same role.

Let’s look at another industry. In upstream oil and gas, contract professionals work in different departments but on the same project. In a multinational exploration and production company I previously worked for, contract engineers (in charge of service contracts) and buyers (in charge of purchase orders) worked in the Contract and Procurement department whilst cost and contract engineers worked in the Surface Facility department. In the same company, Contract Advisors worked at Legal Department.

So with such broadscale variations, it’s very difficult to pin point the role.

3. It is a supporting role and deals with all aspects of the contract

The contract involves a transaction which includes a variety of aspects such as technical, financial, legal, and managerial. The contract professional’s role is to support the core business under the contract, just like other supporting disciplines. However, the difference between the contract professionals’ supporting role and those of other support disciplines is that there is much more interaction and connection between the contract professional and other departments.

Technical department (as sometimes called Contract Owner/Holder responsible for the contract) deals mostly with the technical parts of the scope of the contract. The Financial department only provides support in specific parts such as invoicing and payment. But the contract manager should have good knowledge about all aspects of the contract in order to support. Technical and Financial departments both need the support of the contract professional in drafting and reviewing the relevant terms before signing a contract or a variation and in executing those terms during the performance.

When a dispute arises because of the non-satisfaction of the technical department of the counterparty’s performance, if the nature of the dissatisfaction is purely technical, the financial department will not be able to provide any help while the contract professional could support. In a pipeline project dispute, although the contract professional might not have specialized knowledge about pipe specifications or the applicable standards, he could support the technical professionals to interpret the standards and check the performed work. If he has no or limited knowledge about a specific matter, he has to go deeper to learn.

4. The contract professional has a leading role in pre-contract and a supporting role in the post-contract stage

Before signing the contract, it is usually the contract professional who is the leader whereas after the contract is signed, other experts are the leader and the contract professional supports.

A contract has several aspects, and several disciplines have to cooperate to create a contract. However, without a leader, the work cannot be integrated and discrepancies might be found as different departments provide different inputs and contributions. Moreover, those departments don’t have the knowledge about contracts and need to be guided by a contract professional when inserting terms into the contract. Furthermore, their input might be changed by the contract professional to become suitable for inserting into the contract.

The other pre-contract tasks which indicate the leader role of the contract professional are receiving material or service requests from requesting departments and sending request for proposal/price or holding tenders.

“Contract management has developed into a separate discipline. The client’s contract managers are involved at an early stage of project development to define what contract types and templates to use, given the background and technical complexity of the project. During project execution, they support their internal project leaders by following up the contractors’ activities against what has been contractually agreed”.[iii]

5. Contract professionals could be involved during any stage of the contract lifecycle and with any disciplines

The contract life cycle includes various stages including contract creation, execution and post execution. The RIBA Plan of Work published by the Royal Institute of British Architects is the most common document used in the UK to describe the stages in construction projects. A contract professional could be involved in any of the stages outlined in the document.

In the pre-award stage, he could be involved in prequalification, tender, and award of the contract, and in the post-award stage, he could be involved with change management, claims and disputes, advice to the team and so on.

He could be working with the designers, engineers, managers, finance, procurement and other specialists to make sure the contract is drafted correctly and in line with the interests of the company and the agreements made, and that the parties are performing their commitments in accordance with the contract and law.

The stages, the disciplines and the levels of involvement vary from organization to organization and there is no hard and fast rule. In other words, “There has not been established any “correct” way of administrating contracts; the most important thing is that the administration processes suits its purpose”.[iv]

6. The existing practitioner body and their reluctance to work to a common set of knowledge and methods

There are professional associations dedicated to the profession of contract and commercial management that make ongoing efforts to grow the status of contract managers. Among these associations are the Royal Institute of Chartered Surveyors (RICS), the Institute of Construction Claims Practitioners, and more focused is International Association of Commercial and Contract Management (IACCM). IACCM has spent almost 20 years’ developing and publishing the contract management body of knowledge and training programs; defining test and certification standards; undertaking research; developing an academic community and journal; defining the contract management lifestyle, conducting surveys and producing an ongoing series of updates to the role and how it is evolving.

Therefore, standards and consistency already exist. The only thing that prevents growth in the status of contract managers is the existing practitioner body and their reluctance to operate to a common set of knowledge and methods, or their nonawareness of existence of such professional associations and their extensive useful works.

It should be noted that in the current modern era, the roles and responsibilities of occupations evolve as industries develop. Therefore, contract management professionals have to make sure to adapt themselves to constant and sometimes abrupt changes. This requires keeping up to the changes in the technology and the industry a contract professional is working in. For example, the introduction of artificial intelligence and its use in contract management could lead to the change in the roles of the contract professionals. Again, such adaptation is not possible without using the materials of professional associations dedicated to the profession of contract management.


This article was written by guest contributor, Erfan Ghassempour, for the ICCP.


[i] What is the role of a contract manager?, Tim Cummins, 2018,  https://blog.iaccm.com/commitment-matters-tim-cummins-blog/what-is-the-role-of-a-contract-manager

[ii]  “The Superintendent administers the contract between the principal and the contractor”. Fundamentals of Building Contract Management, Thomas E Uher & Philip Dvenport, University of New South Wales Press Ltd, Edition 2, 2009, Page 46.

[iii] John van der Puil, Arjan van Weele, Page 38.

[iv] Master’s Thesis, Contract Administration in an International Oil Service Company – Current Practices and Possible Improvements, Lene Nesse Espeland, University of Stavenger, 2012.

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We've Introduced Fee Concessions | What does this mean for you?

The ICCP Steering Committee has decided to reduce membership fees for residents of certain qualifying countries. This follows the lead of other UK-based institutes, such as the RICS and CIOB, who operate similar schemes.

The decision was based upon the following considerations:

  • One of the ICCP’s objectives is to award membership to those who have experience, or who wish to obtain knowledge and experience, in dealing with claims. If potential members are excluded because of financial reasons, we will not be fulfilling this fundamental goal.
  • Another objective is to set professional standards for dealing with claims to help to improve the quality of claims and responses worldwide. Again, if we are denying people the opportunity to learn how to do this, we are not achieving our goal.
  • Professionals in low-income countries have often not had the education and training that those in more developed countries have received. One of our purposes is to redress this balance.
  • We consider that the institute, together with its members, has a professional and ethical obligation to help those who wish to improve themselves and this particularly extends to those who reside in developing countries. The ICCP is a forum for the exchange of information and provides extensive information related to claims to help our members increase their professional knowledge.

This is a major step for the institute, and it is hoped that the concessions will make membership more accessible to people who otherwise may have been unable to join.

If you wish to check whether your country of residence qualifies for the concessionary fees, please check our List of Qualifying Countries.

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Records, Records, Records...A Lesson Learned!

I have recently been involved in two adjudications, brought about by the same construction company, against two clients on two similar housing projects. The company (who I shall call Bloggs Builders) were in serious delay, and their works were being disrupted by circumstances outside their control.

I was initially brought in to produce a prolongation and loss and/or expense claim, with the game-plan of facilitating the negotiation of a fair settlement with both clients, thus avoiding litigation. However, there was no settlement, the dispute crystallised, and adjudication proceedings were commenced.

When I first got involved, I asked for Read more