Records, Records, Records…A Lesson Learned!
I have recently been involved in two adjudications, brought about by the same construction company, against two clients on two similar housing projects. The company (who I shall call Bloggs Builders) were in serious delay, and their works were being disrupted by circumstances outside their control.
I was initially brought in to produce a prolongation and loss and/or expense claim, with the game-plan of facilitating the negotiation of a fair settlement with both clients, thus avoiding litigation. However, there was no settlement, the dispute crystallised, and adjudication proceedings were commenced.
When I first got involved, I asked for a copy of the relevant documents, such as all letters notifying the client of delays and disruption. The silence was deafening… Aparently Bloggs Builders had very good relationships with both clients (at the beginning of the projects!) so apparently there was ‘no need’ for writing letters…
“How about minutes of site meetings where progress and programme is discussed?” Blank faces…
“Critical path analysis?”
“Daily work allocation sheets?”
There were a few emails written when the relationships apparently turned sour. Apart from this, there was an enormous and cavernous black hole in Bloggs Builder’s paperwork…
When you are in a delay situation, and there is a necessity for a claim to be produced, cause and effect has to be demonstrated. This is not a ‘nice-to-have’, but is a necessity. Without this reasoned and substantiated part of the submission, you may as well pack up, go home, and drink a large gin and tonic, as the adjudicator will not be able to read between the blurry and cloudy lines of any subsequent attempt at proving your case, but will come to a decision based on hard substantiated facts.
Whilst both adjudications were not lost, they were both pyrrhic victories, in that a proportion of the submissions were successful, but at great expense. However, both adjudicators, to a greater or lesser extent, rejected the claims for prolongation, and for uneconomical working, owing to the lack of evidence. There was no ‘measured mile’ or indeed any available information on cause and effect.
The proper manner of presenting a claim on a construction project is to identify causation. It is also advisable to link the cause of the additional time and cost with the matters that caused the delay and additional cost. If it is not possible to demonstrate where the delay events caused critical delay to the project, then the submission will fail.
Whilst the relationship with any client might initially appear very harmonious, it is both foolish and naive to blindly expect that there will be no contractual disagreements during the project. Please remember that the Contract is in place for a reason: to protect both parties. Consequently, any change (to the programme, method of working, etc.) must be formally notified to the client in accordance with the agreed terms and conditions of the contract. It is also paramount to ensure that detailed records are kept at all times. Failure to notify and record, will invariably end in tears.
Thus endeth today’s lesson…
This article was written by P.K. Robertson, MICCP, MCIOB, MCInstCES, MQSi.
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