November 1, 2018
Procedure for the Review of Claims
A question I often get asked is “how should the engineer (or other party responsible for responding to a claim) ensure that he is being fair to both parties when making a decision or determination?” In my experience, claim submissions range from totally inadequately expressed claims to very well-presented documents but on balance, I have to say that the majority tend to be in the former category. Over the years, in situations where I am responsible for producing a response, I have developed the following procedure for dealing with claims of all shapes and sizes. Undertake an initial review of the claim; Advise the claimant of any shortcomings, which prevent the reviewer from reaching a determination. This could be through formal queries or requests for additional information. If the claim is totally inadequately expressed, it may be appropriate to reject the claim at this stage on the basis that entitlement is not proved. In such a case, it would also be proactive to set out what…
September 2, 2018
Responses, Determinations and Decisions
A recent training course that I presented in London was slightly unusual in that the balance of the attendees was significantly weighted towards the client’s side and also included an arbitrator and an adjudicator. These particular attendees were obviously interested in learning how claims should be responded to and in the case of the arbitrator and adjudicator, how decisions should be presented. Whilst I am happy to say that the training dealt with the subject, I thought it would be worthwhile sharing some of the key points here. In the same way that the object of a claim is to persuade the reviewer that the claim is just and that an award of time or money should be made, the object of a response is to persuade both the claimant and the employer that whatever is awarded, be it the full amount claimed, a reduced amount or nothing at all, is fair and reasonable under the terms of the contract. The same must also be said for adjudicator or arbitrator’s decisions. If responses do not…
August 5, 2018
The Problem with Inadequately Expressed Claims and Responses
EC Harris’ report Global Construction Disputes Report 2013 cites incomplete and/or unsubstantiated claims as one of the major reasons for construction industry disputes. A typical scenario that I have experienced on many occasions is when a contractor submits a badly prepared or ‘inadequately expressed’ claim to the engineer for evaluation and the engineer rejects the claim on the basis that the contractor has not proved his case. The contractor, believing that he has good basis for the claim then refers the matter as a dispute. The question to be considered here is, is the engineer acting properly by rejecting such a claim? As is the case in many such questions, I would say ‘it depends’. If we take the premise that the onus is on the claimant to prove on the balance of probabilities that his claim is just and he has not demonstrated that this is the case by discussing the cause of the claim, its effect, the entitlement to an award under the contract or at law and has not adequately…
June 9, 2017
Construction Information Management: Proactive Tips to Increase Your Success Rate of Claims, a 5-Part Series – Part 5
Part 5: Submittals and Responses: Prioritize, Track and Notify. This is the final article in the 5-part series on pro-active measures to improve construction information management. Project participants in Ontario, Canada should take particular note, as legislation mandating adjudication of construction disputes is likely to take effect at the end of this year. All parties will need to have standard practices in place to capture information and maintain supportive documentation of issues and claims during construction. Communications between various parties on a construction project consist to a large extent of submittals for which formal responses such as: “reviewed”, “reviewed as noted”, “revise and resubmit”, “rejected” and/or “approved”, are required. These include: design drawings, shop drawings, requests for information (RFIs), request for change orders, contemplated change orders, change directives, quotations, change orders, etc. Contract general conditions typically identify…