To Submit or not to Submit?

There are sometimes occasions where circumstances dictate that a claim may be warranted, 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 the matter may elevate to a dispute.

The final alternative is that, if you submit a persuasive case, your claim may be accepted 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 no dispute board is appointed, you could employ an expert to review the situation and give you impartial advice, in mush the same way that a dispute board would do. 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 the claim and possible loss of goodwill of the Employer and Engineer.

This blog was authored by ICCP Executive Officer, Andy Hewitt.

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Comments

Leave a comment 3 Reader Comments
  1. Written by
    Howard.Morris
    on

    Thought provoking stuff Andy. Here are my thoughts:

    Since the standard of proof for construction claims is a balance of probability or preponderance of evidence then one approach would be to consider the question of whether to submit a claim along the same sort of lines.

    Is what has been produced sufficiently robust to convince the recipient that there is entitlement? At 51% certainty then you’d almost certainly want to submit. Maybe still at 40%? Below that we may open ourselves up to accusations of submitting a spurious claim or simply “trying it on”

    Contractors that consistently “try it on” often end up damaging themselves. First of all they soon acquire an unenviable reputation which can harm current working relationships and result in future lost business. In addition, where claims are constantly produced on spurious grounds there’s a danger of cry wolf syndrome. The recipient of these claims hardens their heart to such an extent that when a perfectly valid claim is actually submitted it is met with resistance that it doesn’t deserve.

    I think also one should refer to colleagues for second opinions. If a situation arises that you think gives entitlement but aren’t 100% sure, why not sound it out with a colleague? “How does that read to you?” “If I argued this, how would you respond?” Playing devil’s advocate with an experienced colleague can be a cheap and practical testing ground!

    Howard Morris FICCP

  2. Written by
    Andy Hewitt
    on

    Hi Howard,

    Thank you for your contribution. I agree with you entirely.

    Of course a suitably experienced colleague would be a more econimical way of getting a second opinion on the merits of a claim, providing you have someone like that within your organisation.

    When completing a claim, I also recommend that a ‘third party review’ is carried out, either by a colleague with no prior knowledge of the matter in question, or an outside expert. This ensures that everything is properly explained and, if the reviewer provides devil’s advocacy, often provides insight into how the receiving party may react and view the matter.

    Andy

  3. Written by
    Chandrashekhar Thatte
    on

    It is always a business after-all for all parties to the contract.A contractor ,if he suffers any kind of genuine damage or incurs additional cost not covered in the contract price ,is rightfully entitled to submit a claim and there is no question of not submitting the claim.For any claim which merits consideration for review/acceptance should be systematically documented ,prepared and convincingly/justifiably presented in time as provided in the contract with all the contemporaneous documentary evidence .Preparation and submission of a claim is an art as well as science for genuine as well as spurious claims exploiting lacuna in the contract terms and specifications.

    I fully agree and support your thoughts,Howard and Andy.

    Chandrashekhar Thatte

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