THOUGHT LEADERSHIP
It is not cricket , but could be a claim
By Stefan Müller
The risks in having claims recognised and accepted can be substantially reduced through proactive contract administration , whereby reliable records and documentation are generated as the event occurs .
In modern-day team sports such as cricket and rugby , we have an on-the-pitch umpire or referee , or as in the case of cricket , two umpires . It is expected of the umpires to make on-field decisions regarding events that occur on the pitch in a fair and just manner . However , due to the complexities during the event , it is not always possible for the umpire to make a fair and just decision on the event and he will then refer to the so-called television referee . The television referee will study all the available information recorded in both slow motion and real time to make a fair and just decision . The same situation occurs on construction projects when claims for both time and money are being submitted for a fair and just decision by the client . The contractor learns that the claims submitted are being scrutinised in the finest detail to either reject or to minimise the settlement value of the claim . The information available to the television referee will come from strategically placed cameras and camera operators . Should one of the strategic cameras have been unable to record the event , then the decision will be based on the available information and will probably not be to the satisfaction of both players and fans . The television referee or an arbitrator make their decisions based solely on the facts reflected in either the film recording in the case of the television referee , or from the detailed documents submitted by the contractor in the case of the construction claims . It is therefore understood that it is vital to submit all
34 - CEC February 2018 relevant documents when submitting a claim . The risks experienced by most contractors in having claims recognised and accepted can be substantially reduced through proactive contract administration , whereby reliable records and documentation are generated as the event occurs .
Preparing the claim
In preparing his or her claim , the contractor will correlate all information pertinent in support of the claim , whether it be for an extension of time and / or money . As with the television referee , the event leading to the claim to be drafted has passed . Thus , only the recorded information in the form of correspondence , site daily diaries , technical reports , drawings , time schedules , and drawings can be used to assess any entitlement . In addition , any costs also need to be substantiated and here copies of invoices , payments , lease and / or rental agreements , salaries and wages , and so forth must be supplied , to clearly demonstrate the costs that have been incurred because of said event .
Assessment
The contractor will submit the claim , with supporting information and documentation , to the responsible client representative on site who , as in the case of the match official , will either accept or reject the claim and hopefully give sufficient reason for the decision . The contractor and client representative will exchange views and documentation in an attempt to resolve the issue . They will , however , reach a point where both parties can no longer convince the other to their point of view . With a stalemate being reached , a dispute would be declared . A final attempt to reach some kind of amicable solution will also be made by the responsible leaders of the parties . Should this also fail , then the matter will be referred . When considering all the documentation available at this stage , one may believe a dispute could have been avoided had a notice or letter been submitted or more effectively communicated . A contractor who demonstrates a regular and proactive approach in submitting notices and / or correspondence is less likely to end in dispute . However , when a dispute cannot be avoided despite good communication , the habit of providing the correct notices and correspondence in a regular fashion is more likely to achieve a fair settlement with the dispute process .
Referral
Having declared a dispute , the issue then is no longer under the control of the persons on site , but is referred to a neutral third party . The contract agreement will describe the procedure to be followed where a dispute is declared . As in the case of the sporting event , the contractor can be convinced that the right decision was not made and request that an independent person in the form of a mediator or an arbitrator review the claim . The role of the mediator is less independent because the mediator will work closely with both parties in trying to find a solution to the dispute .