Records, Records, Records!

Preparing yourself for a claimVictoria PriceContracts Department

This seminarHow to advance a claim for the recovery of additional costs, unpaid fees and extension of time claims What is required to prove a claimObligations on Mott MacDonald project teams

IntroductionProof:act or process of showing that a statement is true; that which shows a statement to be true.Not a term found in most contracts, contrast with:valued by the Quantity Surveyorestimates to be fair and reasonableshallascertainBUT - If the contract doesnt work, proof takes on a new significance

Introductionformality of prooftimeCONTRACT ADMINISTRATIONFORMAL DISPUTE RESOLUTION

IntroductionMax Abrahamson in his book Engineering Law and the I.C.E. Contract wrote: A party to a dispute, particularly if there is arbitration, will learn three lessons (often too late): the importance of records, the importance of records and the importance of records.

Group Directive - ContractGroup Directive 4.04 - Terms of Engagement: agree a written contract before starting work if impracticable to agree written terms then key matters must be included: scope of services, fee, limit of liability, law and dispute resolutionMott MacDonald standard terms and conditions

Agree a contract first, start work laterIs there a contract? What should be included in the contract?details of the partiesdefined scope of worktime of performanceidentify expectations and client responsibilities price of the contract limit of liabilitydispute resolution / arbitration clause

VariationsNormally clear rules in the contractMott MacDonald single page standard contract variation provision: If the Consultant performs any additional services or if the Services are delayed or disrupted for reasons beyond the reasonable control of the Consultant then the Consultant shall be entitled to such additional fees and additional time for performance as is fair and reasonable in all the circumstances. (my underlining)

VariationsNeed to establish:original obligationinstructed change to that obligationquantitiesrates / effects on ratescosts

Variations obstacles to proving entitlementAre variations permitted? Absence of a written instructionimplied promise to pay for the varied work? condition precedent to payment?consider waiverTime barring provisionsChange in the employers requirements or design development? Spec creep in design and build contractswhat was the clients original requirements?

Extensions of timeMott MacDonald single page standard contract extension of time provision: If the Consultant performs any additional services or if the Services are delayed or disrupted for reasons beyond the reasonable control of the Consultant then the Consultant shall be entitled to such additional fees and additional time for performance as is fair and reasonable in all the circumstances. (my underlining)

Extensions of timeNeed to demonstrate:existence of a compensation event (NEC) or delay or disruptioncompliance with any particular ruleseffect / delaydeal with accusations of culpability / concurrency

Extensions of timeWhat the consultant needs:programmes (intentions)progress (facts / records)explanationanalysiscause and effect

Poor records examplesExample 1all terms of a contract were agreed except a liability limit and collateral warrantiesjudge held there was no contractbest practice: conclude all the terms in a contract before starting workExample 2project only had 3 job codesparties couldnt identify between costs of varied work and scope of servicesbest practice: create sub job codes to record time spent on varied services

Poor records examplesExample 3no formal written instructions for the varied servicesvariation procedure not followedunjust withholding of feesunpaid and additional fees claimbest practice: follow the variation procedure and only proceed with a variation once the client has given written confirmation of the variation and any additional fees

Group Directive - RecordsGroup Directive 4.23 Project Records:a copy of all documents related to the contract must be deposited with the business unit's management once the contract is signedall aspects of the project must be properly recorded records should be accessible to appropriate staffat the end of the project records must be properly archived

SummaryAgree a contractKnow the rulesLay the ground workKeep the records (investment) Recognise the different forums

contract programmevariation orders and site instructionscopy of the agreed contracta full set of correspondenceinstructions and orders given (written and oral) minutes of meetingssub-consultant information (including correspondence and accounts)

requests for information (RFIs) and responses theretodrawings (including all amendments)site diariesrecords of key telephone conversationslabour cost information (including copy invoices)all other accounts informationdelay information

Records which can be kept in relation to procedural requirements under a contract:Examples of records

Records which may assist in supporting a claim:contract programmetimesheets / invoicescopy of the agreed contractprogress photographs with dates when takenminutes of meetingsdelays encountered site diariesrecords of key telephone conversationsExamples of records

Questions?

If in doubt ask a specialist for assistance

Contracts Department0208 774 3107

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