Responses, Determinations and Decisions
A recent training course that I presented in London was slightly unusual in that the balance of the delegates was significantly weighted towards the client’s side and also included an arbitrator and an adjudicator. These particular delegates were obviously interested in learning how claims should be responded to and in the case of the arbitrator and adjudicator, how decisions should be presented. Whilst I am happy to say that the training dealt with the subject, I thought it would be worthwhile sharing some of the key points here.
In the same way that the object of a claim is to persuade the reviewer that the claim is just and that an award of time or money should be made, the object of a response is to persuade both the claimant and the employer that whatever is awarded, be it the full amount claimed, a reduced amount or nothing at all, is fair an reasonable under the terms of the contract. The same must also be said for adjudicator or arbitrator’s decisions.
If responses do not properly set out the reasons for the determination and do not deal with the essential issues then, at best, agreement will become protracted and at worst, a dispute will occur. On many occasions, I have seen well prepared claims consisting of two volumes of narrative and appendices to substantiate the narrative responded to by a consultant by way of a one-page letter, usually containing some sort of frivolous excuse as to why the claim has been rejected. This sort of action does not comply with the provisions of most forms of construction contacts, that the consultant should issue a meaningful response and any consultant who considers that a contractor, after spending many hours and much money on preparing a claim, will accept such a response is quite frankly naïve to say the least.
So, what should a response or decision contain? Well, it should contain the same things a properly presented claim. In short, this should comprise an examination of what happened, a demonstration of the effect of what happened, a calculation of the quantum in either time or money, an examination of the claimant’s entitlement and substantiation of all the foregoing. If consultants follow these basic principles, then claims will be settled in a timely manner and fewer disputes will arise.