How to Make Sure Your Claims are Accepted

If you wish to ensure that your claims are accepted, you need to bear in mind EC Harris’ (now ARCADIS) report Global Construction Disputes Report. This report 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 engineer is quite correct to do this, because the onus is on the claimant to prove that the claim is just and in such a case, the Contractor has not done so. The Contractor, however, believing that he has good basis for the claim, then refers the matter as a dispute.

In order to avoid this, the contractor must examine the cause of the claim, its effect on the completion time and/or the contract price, the entitlement to an award under the contract or at law and must adequately substantiate all of these matters. If he does not do this, then the claim must undoubtedly fail.

I would suggest that inadequate responses also contribute significantly to disputes. If responses are not prepared in a professional manner, the engineer is actually encouraging a dispute. In my opinion the engineer has a duty to resolve matters proactively and fairly and although this does not extend to making in unjustified award, his response should be made in such a manner that both the employer and the contractor are fully aware of the engineer’s findings and how they have been reached. This, more often than not, means that a fully detailed response is necessary. Both parties must also be given the opportunity to provide responses to the engineer’s findings and this process could result in the contractor providing further and better particulars, which may well change the engineer’s initial opinion.

If both parties deal with claims properly and professionally then the likelihood of them being elevated to disputes will be considerably reduced.