He Who Alleges Must Prove
In perusing a claim for additional time and/or costs under any of the four CIDB approved contracts, and generally in law, the Contractor bears the burden of proof in showing that, on a balance of probabilities, the delay to progress or completion was a result of an Employer caused delay event.
Accordingly Andy Hewitt: ‘Construction Clams & Responses effective writing & presentation’ (1st Edition, Wiley-Blackwell, 2011) explains any claim submission consists of essentially two parts :
The narrative - which deals with the details of the project, sets out the circumstances of the claim, demonstrates the effects of the claim and explains the basis of any supporting documents that have been prepared to help demonstrate the effects and/or quantum of the claim.
Appendices - which contain documents such as programmes, calculations and project records that have been prepared to support, illustrate or substantiate the claim.
Basis of the Claim
It is fundamental that any claim must indicate precisely the contractual basis upon which the claim is to be founded.
The claim will fall into one or both of the following two categories:
A claim for loss and expense or extra cost or expense flowing from a remedy contained within the conditions themselves.
A claim for common law damages resultant upon a breach of the express or implied terms of the contract.
Hewitt presents the abbreviation CEES as the essential elements to include in any claim:
Cause:- The occurrence of the event which has given rise to the claim and must be established and substantiated in the claim.
Effect:- A demonstration of how the event affected the claimant by linking the cause with the effect.
Entitlement:- The claimant’s right under the contract or law to the compensation claimed which requires to be established and substantiated in the claim.
Substantiation:- Includes showing compliance with all conditions precedent to claim and the substantiation of all statements, calculations and demonstrations by reference to project records, the contract or other supporting documentation
Below is a suggested claim format which has been simplified for daily use on site by Contractor’s. The format is in no way an exhaustive list of what may be included but serves as a base guideline for the layman Contractor in notifying and pursuing its claims.
Below is a suggested claim format which has been simplified for daily use on site by Contractor’s.
The format is in no way an exhaustive list of what may be included but serves as a basic guideline for the layman Contractor in notifying and pursuing its claims.
- Claimants name.
- Project title.
- Claim title.
- Name of the parties.
- Section numbers.
- Section titles.
- Page numbers.
The Method of Delay Analysis
- The Programme and method used to demonstrate the delay and the effect of such delay to the completion date.
- The Baseline Programme.
Claim for an Extension of Time to the Completion Date
- The Cause.
- The Effect.
- Delay Analysis.
- Revised completion date.
- Entitlement to extension of time under the Contract.
- Examination of conditions precedent.
- Substantiation by reference to project records.
Claim for Additional Payment
- Cause and effect for additional payment.
- Entitlement to additional payment.
- Nature of the additional payment claimed.
- Calculations and substantiation of costs.
- Brief summary of the costs and request for an Engineer’s determination.
The Pathway to Success
The average claim which is presented for evaluation to the Employer/Engineer on a typical construction site is more often than not particularly poor. With this in mind it is unsurprising that most claims are initially rejected out of hand.
The above layout will serve to create a compelling case on the part of the Contractor and go some way to dramatically increasing the Contractor’s prospects of success.
For those of you who may be interested - Hewitt has released the second edition of his book Construction Clams & Responses.