Progress Updates – Fact or Fiction?

Contractors often shoot themselves in the foot when preparing progress updates for the employer’s team. Many times we see months worth of updates which present a rose-tinted view of project progress.

Whilst it is tempting to keep reporting good news month-on-month, be wary. A less than competent consultant may believe such reports because good news will not involve them in additional and troublesome work. However, you could be causing problems for yourself further down the line.

Problems frequently arise when the contractor needs to submit a claim for an extension of time. It becomes very difficult for him to subsequently tell the employer’s team: “I know we kept telling you that there was no delay to the completion date, but actually there is and it’s not our fault, so please can I have an extension of time.

A progress update, as-built programme or updated programme (all different names for the same thing) is created using the latest agreed programme. It uses planned start and finish dates plus the percentage of progress for any activity started but not finished. The logic contained in the programme and the programming software will then predict the completion date based on progress to date.

Before I specialised in contractual matters and claims I was a project manager for both contractors and consultants. When my planning team produced a progress update, I wanted only one thing from them and that was…

THE TRUTH.

If the update predicted early or on-time completion then I knew that we were doing okay. But if the update was predicting a delay, then I needed the planners to tell me the cause, or causes, of the delay so that we could to take action.

If the delay was caused by us or was due to something that we were responsible for under the contract, we had to find ways to recover the delay. This could mean working longer hours or mobilising additional resources.

But what if the delay was caused by the employer or by something which is at the employer’s risk under the contract? In this case, we needed to identify the cause, submit the necessary notices and make preparations to submit a claim.

So, what would I report to the employer’s team in our monthly progress reports under such circumstances? Again…

THE TRUTH.

Many contractors will not agree with this tactic and will be reluctant to tell the employer’s team that the project is in delay for any reason at all. The contractor should admit to his own delays but explains the steps that he is taking to mitigate. Generally, the employer’s team will accept that delays do happen and that the contractor is being proactive about dealing with them. Telling the employers team about predicted delay will only support subsequent claims. Particularly when the cause is something which will entitle the contractor to an extension of time.

This, of course, only works if the contractor is not going to just bury his head in the sand and hope that the delay will go away. Trust me, it probably won’t. The contractor must actually take mitigating action to recover their own delays. Make sure you send the necessary notices and submit a claim without undue delay.

So, what is the alternative to telling the Employer’s team THE TRUTH? Manipulate the programme so that it no longer predicts a delayed completion date? Unfortunately, this is what many contractors do to avoid giving the employer’s team any bad news.

The fact is that this knee-jerk reaction is not sustainable through many progress updates. It will not support any legitimate claims for extensions of time seems lost on such contractors.

Fact or fiction? I will leave you to decide the best way.

Understanding the importance of contract administration is vital to avoiding claims. Discover more with our Understanding Construction Claims Under FIDIC E-course.


Letters Abbreviations

When Should You Use Abbreviations and Acronyms?

I have one piece of simple advice about using abbreviations and acronyms. Whether in claims, responses, contractual letters, reports or any important communications on your project:

Do not use them….

at all…

ever!

Let’s look at a real-life example of why this is so important.

Our consultancy business, Hewitt Decipher Partnership, was recently appointed by a contractor. Our job was to prepare claims on behalf of the contractor for an extension of time and additional payment on a large project.

Read more


Avoid Construction Disputes

How Education and Training Avoids Disputes

I don't usually have much to say about education and training or attempt to promote our Claims Class courses through our blogs. But, this month I am going to make an exception and for good reason. Recent reports demonstrate that education and training will avoid time-consuming and costly construction disputes.

HKA’s report, Claims and Dispute Causation – a Global Market Sector Analysis and ARCADIS’s Global Construction Disputes Report 2019 are both pretty scathing. Both point to a lack level of knowledge exhibit when it comes down to contractual matters and claims.

Read more


COVID-19

COVID-19: Options for Contractors, Engineers and Employers

In my last blog, I discussed the effects of COVID-19 under the FIDIC Red and Yellow Books. Particularly whether contractors are entitled to claim for an extension of time and/or costs.

My advice was just a few weeks ago. At that time, some contractors were anticipating delays. Firstly caused by supply chain problems associated with plant, goods or materials sourced from China. Secondly by the travel restrictions which were in place. My thoughts were that,  the Contractor will be entitled to an extension of time provided he can demonstrate delay to the Time for Completion and/or the incurrence of Cost. He may also be entitled to claim for additional payment for Cost incurred.

Read more


Coronavirus and Construction - Is the Contractor Entitled to Claim?

 

The global hot topic this month is definitely the coronavirus. It's affecting many construction projects.  Labour, materials, plant or equipment are coming from China (or other affected countries) and supply has been delayed. So what do you do if you're a contractor in this situation? Are you entitled to make a claim?

Well...it depends on your particular contract, but possibly.

I know that this is a bit of a lawyer’s answer, but it really does depend on several things. Let’s however, have a look at what the FIDIC Red and Yellow Books, 1999 Editions, have to say on the subject.Read more


Force Majeure

The Perfect Claim

Exciting news: We spent a large chunk of 2019 developing a new course, The Perfect Claim. Now, we’re ready to share it with you in 2020. But first, let’s take a step back. Why the need for another course?

Well…

Read more


Construction and Contract News 2019

We are looking ahead to 2020 and back on the past year. What has changed and what should we be looking out for in the world of construction contract and claims? We take a look in this round-up of construction and contract news from around the world…

Read more


Case Study: In-House Training for Government Employees in Africa

As well as delivering online e-courses, we offer in-house training for companies. We were approached by the government department responsible for roads and highways in an African country. The department was experiencing several problems related to claims and wanted to train their in-house staff on how claims should be managed effectively. The problems were:Read more


Claims Class

How to Manage and Minimise the Submission of Spurious Claims

The Claims Class blog has attracted loyal readers over the years. We get lots of comments as well as questions on issues that our readers are dealing with on their projects. And this often gives me inspiration for new articles. A reader recently told us that he spent a lot of time dealing with inadequate claims. He asked how he could effectively manage and minimise the submission of spurious contractor's claims. So here are my thoughts...

Consultants need to spend a lot of time and effort to manage and respond to contractor's claims. So it's worth making sure that you spend this time working on justifiable claims. Don't waste time reviewing and responding to claims where the contractor has no entitlement, or to those that have not been submitted in an appropriate manner.

Remember that the onus is on the claimant to prove the case. Most contracts require consultants toRead more


construction claims responses and determinations

The Engineer's Responses and Determinations: What Should be Included?

Earlier this year I presented a CPD talk to RICS members in Dubai on the topic of Engineer’s Responses and Determinations. I usually like to kick things of with a poll and I asked the group the following questions:

How many people have experienced a situation where the Engineer does not respond to a claim within the contractual time-frame? Almost everyone confirmed that they had.

How many people have experienced a situation where the Engineer’s response has done little to resolve the claim? Again, almost everyone confirmed that they had.

How many people have experienced a situation where the Engineer’s response has caused the matter to escalate to a dispute? Over 50% of attendees confirmed that they had.

How many think that failures of the Engineer to carry out their contractual obligations on claims is helpful to projects? No one thought that this helped projects.

This is clear feedback from RICS members that the Engineers often do not perform their obligations. This has a detrimental effect on projects.

So, what should Engineers be doing to help projects when responding to claims? Well, as usual, the contract provides the answers, so let’s have a look at what the FIDIC Red Book has to say on the subject.Read more