I have read some excellent articles on LinkedIn from lawyers discussing the options of relief under contract such as force majeure and the discussions around “frustration” arguments.
At this stage of the pandemic, this advice from lawyers may trigger the need for an actual claim for time and cost to be submitted. This is where Accura Consulting works with Lawyers, Contractors and Owners either preparing or forensically analysing claim submissions.
Below is a non-exhaustive list Contractors need to take to preserve and increase the likelihood of clearly demonstrating their entitlements.
Notify the Event
Correct notification will reduce the chances of rebuttals on the grounds of a failure to substantiate the claim and/or following the conditions precedent detailed in the contract.
Some non-exhaustive points to consider are:
- Ensure all notices are submitted within the times specified in the contract;
- Make sure you follow all of the requirements of the contract (submission of an impacted programme, estimated cost of the delay etc.)
- Outline what the actual event is that has occurred, i.e. lack of materials due to border closures or statutory isolation etc.
- Explain what effect the event has had on the critical path, for example, 20 days of statutory isolation affected the critical piling works which led to a 20-day delay.
- Continually update the notice as the delay continues in line with the contract requirements and in any case circa 3 to 5 days.
- Confirm when the event is considered finished and submit the final claim inline with the requirements of the contract.
We all know the saying records, records, records! Clear and concise records must be maintained to reduce the likelihood of debates and challenges to the facts in the future, this applies to both contractors and owners.
Some practical points to consider are:
- Compile and maintain records from the commencement of the delay;
- Maintain organised files in a consistent and logical order;
- Collate relevant emails, letter, shipping documents, project deliveries related to the claimed event(s);
- Keep ‘dated’ photographic records (where safe to do so and legally allowed to);
- Capture labour, plant and material records.
Program & Progress
If claiming for a delay, the contractor will be required to demonstrate that the event has affected the critical path. To ensure the delay is demonstrated correctly and remove the risks of rebuttals, a full health check of the programme should be undertaken.
The rebutting party will always attempt to identify any concurrent contractor delays or failures in a contractor’s program.
Some practical points to consider to avoid this happening:
- Ensure the baseline program is technically correct, and logic links and lags etc are correct;
- Sanity check the “as-built” dates;
- Is the critical path a true representation of the facts?
- Demonstrate the commencement and the continued effect of the delay on the program;
- Identify (internally) if any true concurrent events are running at the same time as the claimed event.
If you require expert advice in compiling delay and variation claims due to the COVID19 pandemic, or any other matter, please feel free to reach out for a no-obligation discussion.
Accura Consulting’s team are working remotely in all of our worldwide locations and are continuing to support our clients.
We can be contacted on firstname.lastname@example.org
Ged Barron – Director
This article is in no way to be construed as legal or any type of professional advice.