How to Make Sure Your Claims are Accepted
If you wish to ensure that your claims are accepted, you should 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 I have encountered many times is when a contractor submits a poorly prepared or ‘inadequately expressed’ claim to the Engineer for evaluation. The Engineer then rejects the claim on the basis that the contractor has not proven their case. The Engineer is quite correct to do this, because the onus is on the claimant to prove that the claim is justifiable, and in such a case, the Contractor has not done so. However, the Contractor, believing that they have a solid basis for the claim, then escalates the matter as a dispute.
To avoid this situation, 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 this is not done, then the claim will undoubtedly fail.
I would also suggest that inadequate responses from the Engineer 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. Although this does not extend to making an unjustified award, the Engineer’s 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 these findings have been reached. This often requires a fully detailed response. Both parties must also be given the opportunity to provide feedback on the Engineer’s findings, which may result in the Contractor providing further and better particulars that could change the Engineer’s initial opinion.
If both parties address claims properly and professionally, the likelihood of them being elevated to disputes will be considerably reduced.
