FIDIC Contracts 2017 Man Drafting

To Submit or Not Submit?

There are sometimes occasions where circumstances dictate the warranting of a claim. But the situation is not so clear-cut that you are sure whether the claim is totally justifiable, or whether it will ultimately succeed. What are your options here?

On the one hand if you don’t submit the claim, you will definitely not receive anything from the Employer.

On the other hand, if you do submit a claim with no certain entitlement, you could run the risk of being accused of submitting a spurious claim, which is not likely to endear you to the Employer or the Engineer. In any event, in such a situation there is probably going to be some contention and it is possible that the matter may elevate to a dispute.

The final alternative is that, if you submit a persuasive case, your claim may receive acceptance but this is unlikely if the matters on which the claim is based are not clear-cut.

So, what is the best plan of action in such circumstances?

If there is a dispute board on the project and their terms of appointment include providing advice to the Parties, you may ask their opinion on whether a claim would have merit. This is one of the situations where a dispute board can avoid disputes to the benefit of the project and the parties. Having received the considered advice of the dispute board, both parties would have to be pretty sure of their own position not to follow it.

If you do not appoint a dispute board, you could employ an expert to review the situation and give you impartial advice, in much the same way that a dispute board would do. Moreover, if the expert advises that the claim has merit, you should have a good chance of ultimate success. If the expert advises that a claim is not justified, or its success is doubtful, then you will save considerable time, effort and cost in the preparation of the claim and possible loss of goodwill of the Employer and Engineer.