Claims and Responses: The Engineer’s Role

Every claim needs a response and, under most contracts, this responsibility falls to the Engineer.

Under most common international contracts, the Engineer is required to review claims and respond neutrally and impartially, guided by the conditions of contract. In practice, though, Engineers often take a defensive position to protect the Employer’s interests.

The problem is that an unfair, defensive response won’t persuade the Contractor that their claim lacks merit. Instead, it pushes the Contractor toward raising a formal dispute just to secure what they’re entitled to under the contract.

Avoiding Disputes

Disputes are bad news for any project. Rather than focusing on project delivery, the parties become tied up in resolving the dispute, burning significant time and money in the process.

And if the dispute is ultimately resolved in the Contractor’s favor, all that time, cost, and effort is wasted. An Engineer who takes an unfair defensive position is the one who sets this chain of events in motion, which means that ultimately, this doesn’t protect the Employer’s interests at all.

Engineer’s Responses

A response may have a number of outcomes:

1. The Engineer may need additional particulars to help assess the claim and reach a conclusion
2. The claim will be accepted in full
3. The claim will be rejected entirely
4. The claim will be accepted in principal, but with reduced quantum

The goal of any response should be to lay out the Engineer’s findings clearly enough that both parties accept them, and to make both sides confident that pursuing a dispute would fail. This approach allows most claims to be resolved amicably as the project moves forward.

If the Engineer believes a claim has merit but can’t reach a final conclusion because something is missing, the response should clearly specify what additional information is needed.

If the Engineer plans to accept a claim, whether fully or at a reduced amount, the response should give the Employer confidence that the award is fair and justified under the contract. Likewise, if the claim is being rejected or reduced, the response should give the Contractor confidence that the Engineer’s findings are fair and reasonable.

Finally, the Engineer should meet any response deadlines set out in the contract. Delaying a decision doesn’t make the issue disappear, and if a claim is valid, the Contractor should receive a time extension and/or prompt payment to support their cash flow. Both outcomes ultimately benefit the project, and by extension, the Employer.

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