Claims Resolution Procedures in Construction Contracts

Introduction

Despite a turbulent year of adjusting forecasts and adapting expectations within the industry during the pandemic, construction and infrastructure projects around the globe continue to grow. With growth in the scale of projects inevitably comes increased complexity and, in turn, a bigger potential for loss impact. Expectations on sustainability and the UK government’s commitment to reach net zero carbon emissions by 2050 are also likely to lead to more intense scrutiny of the industry, with many entities also having to balance these expectations with rising construction costs and labour shortages.

All these competing pressures signal a greater risk of expensive, multiparty, multidiscipline and complex claims and will doubtlessly have many in the industry considering their rights and obligations under their contracts – in particular, their approach to claims administration and the contract’s dispute resolution provisions.

Claims administration

In recent years, the construction industry has sought to develop a number of collaborative practices through contractual mechanisms designed to encourage the timely sharing of information and the ethos of working together as a project team. Many industry standard construction contracts are designed to operate as a ‘project management tool’ used throughout the life of the project, as opposed to a document that is consulted only during challenging, adversarial times. Construction contracts should include provisions that facilitate dispute avoidance and claims handling, to prevent disputes escalating through formal dispute resolution procedures and effective procedures aimed to encourage early amicable solutions, lower costs and fewer delays to the project overall.

Effective contract management

It is frequently the case that when contract disputes arise, and contractual non-compliance is identified, project managers or contract administrators express that the reality of working on site and the practices that develop do not match up to the contractual procedures concocted by the lawyers who drafted the provisions. Often, provisions are considered impractical, unwieldy or simply inappropriate for the project in question.

In the current climate, and given the importance of following contractual procedure to maintain a party’s entitlement to claim under a contract (as is explored in more detail below), it is more important than ever that project managers and contract administrators are given the opportunity to input into the drafting stage of a construction contract, if at all possible. Where such an opportunity does not arise in the contractual negotiations, it is vital that project managers and contract administrators at least understand their rights and obligations under the contract so that they (1) can exercise those rights and entitlements and (2) do not purport to give instructions, waive requirements or otherwise make agreements that are inconsistent with the express contractual terms. Having a proper understanding of the risk allocation and powers in the contract among those with ‘boots on the ground’ can avoid later disputes.

And this is not just important from a contractor’s perspective. With some standard form contracts now seeking to ‘level the playing field’ between the contractor and the employer, employers must also be acutely aware of the possible import of obligations and that something that may, on the face of it, seem to be ‘merely procedural’ may act as a bar to making a legitimate claim against their contractor.

Typical contract management ‘tools’ within construction contracts include:

• early warning provisions;
• rights of access to information;
• audit rights;
• conditions precedent to claims;
• careful record keeping;
• clear lines of communication and authority;
• clear change control procedures; and
• dispute resolution and avoidance provisions.

Rights to information

It is important for an employer to have the ability to monitor the project contemporaneously (in fact, this may be a requirement on lender-backed projects). Industry standard construction contracts typically contain an obligation on the contractor to provide information in the form of progress reports on a specified periodic basis, site meetings and meeting minutes, or share databases. The breadth of rights to access and inspect the information varies from contract to contract. For example, the International Federation of Consulting Engineers (FIDIC) Silver Book (2017 edition) contains a provision stipulating the specific nature of the information required to be provided.^[2] It permits the employer to have full access to the site to be able to inspect or test and to check progress or manufacture of plant and materials. There is also a specific reference to record keeping within Sub-Clause 20.1 [Contractor’s Claims] in FIDIC 1999, which requires the contractor to ‘keep such contemporary records as may be necessary to substantiate any claim’ and gives the employer’s engineer a right to ‘monitor the record-keeping and/or instruct the Contractor to keep further contemporary records’.

Access to information is also important to the contractor because the contractor is often reliant on the client providing information, approvals, instructions and decisions – and in a timely manner. The Joint Contracts Tribunal (JCT) Design and Build Contract, 2016 edition (the JCT 2016), for example, contains an obligation that, where consent or approval is required, it shall not be unreasonably delayed or withheld (Sub-Clause 1.10). It also provides that the employer shall provide contract documents (which includes the employer’s requirements) and pre-construction information ‘immediately after the execution of the Contract’ (Sub-Clause 2.7). It is not unusual for non-standard construction contracts, or amended standard form contracts, to omit such a provision and this frequently leads to disputes over whether such an obligation is implied in the contract or whether an ‘entire agreement’ clause limits the parties’ rights to those express terms contained in the contract.

Audit rights

Audit provisions prescribe how often the employer is allowed to audit, the documentation the contractor is required to retain, and how long those records must be kept and made available to the employer. These provisions are generally aimed at financial records being kept in accordance with ‘accounting practice’ and often appear in projects that are supported by lenders.

Conditions precedent to claims

A condition precedent is a contractual term that provides that an obligation or entitlement will only exist if and when certain conditions are satisfied. A common example of a condition precedent in construction contracts is a contractual provision that bars the claim on the grounds that it was not notified within a period of time.

Whether or not a provision constitutes a ‘condition precedent’ will depend on the wording of the provision. To determine the nature of the provision, a court or tribunal ought to apply a close textual analysis while taking account of the context and purpose of the provision.^[3]

While the consequences of failing to satisfy a condition precedent could be severe (in that failure to serve the required notice within the timescale might be fatal to the claim, regardless of the merits of the underlying claim), notice can serve an important function in construction projects because it allows issues to be investigated in real time and provides more time to react to the problems being encountered to allow mitigation. Such an opportunity ought to help both the employer and contractor. It can also promote the behaviour of dealing with contractor claims as and when they crystallise during the life of the project, which, in theory, should avoid the common problem of dealing with a build-up of the contractor’s claims at the end of the project, often resulting in final account disputes between the employer and the contractor. When parties have a good understanding of contractual procedure, a condition precedent notice provision can stand as an effective project management tool to promote a more collaborative approach between the employer and contractor, rather than a procedural trap or hurdle. The effectiveness of such provisions legally will, however, often depend upon the precise wording of the clause and the governing law of the contract.

Dispute resolution and avoidance provisions

A contractual dispute resolution clause sets out the mechanism by which parties intend to resolve any disputes that may arise out of their contract. While, more often than not, relegated to the tail end of a contract, these clauses can have a major impact on the manner in which a dispute is resolved and the parties’ entitlements and obligations and can, ultimately, be pivotal to the outcome of a dispute.

It is common for standard form contracts, or suites of contracts, to provide for dispute resolution. For example:

• New Engineering Contract (NEC) 4 2017 provides a two-tier approach with the first step being adjudication, and the second, in the event the dispute is not resolved, arbitration;
• the JCT 2016 states that mediation should first be given serious consideration followed by adjudication and arbitration; and
• the FIDIC 2017 suite follows a multi-tiered approach with the first step being referral to the Dispute Avoidance/Adjudication Board (DAAB) for a decision. If either party is unhappy with the DAAB decision, it gives a notice of dissatisfaction within 28 days and, if it cannot be resolved through amicable settlement, final determination is by arbitration.

Where a dispute resolution provision follows a tiered approach, it is important to consider (ideally at contract negotiation stage) whether those ‘tiers’ are intended to be binding to the extent that a party cannot skip a step in escalating the dispute through the tiers. Failure to comply can have serious consequences, including jurisdictional challenges in court and arbitration and the stay of proceedings.

This can extend to steps that may have traditionally been considered by parties to be ‘optional’. For example, in Ohpen Operations UK Limited v. Invesco Fund Managers Limited,^[4] the English court held that mediation was a condition precedent to the commencement of litigation and, as a result, stayed the proceedings to enable mediation to take place. In that case, the dispute resolution clause provided for a series of escalating steps to be taken in an attempt to enable early resolution within a timetable and, failing resolution, litigation as a last resort. Mrs Justice O’Farrell held that, ‘In principle, . . . where there is an unqualified reference to ADR, a sufficiently certain and definable minimum duty of participation should not be hard to find . . .’. The case demonstrates that a sufficiently well-drafted clause is capable of creating a condition precedent to the right to issue proceedings under English law.

Contractor-initiated claims for time and money

Contractor-initiated claims predominantly revolve around an entitlement to time or money, or both. For example, claims for additional time or loss and expense relating to delay or breach by the employer (e.g., where an employer fails to fulfil its obligations, such as providing late design information or approvals) or claims for additional time or loss and expense arising out of a variation to the works or scope (e.g., on discovering that the site conditions are different from those contemplated by the employer – if, of course, this is a risk allocated to the employer under the terms of the contract). Most modern construction contracts, therefore, contain prescriptive regimes around how the parties are to make such claims and how such claims are handled through to resolution.

FIDIC

FIDIC 1999 (Red, Yellow and Silver books)

While the FIDIC 1999 suite has been superseded by the 2017 suite, it provides a useful comparison to show a contractor-specific provision before FIDIC’s move towards contractual parity in the procedure for bringing claims between the employer and the contractor.

Clause 20 of FIDIC 1999 provides the contractor with a basic right to claim additional time or money, or both, in the event that it is entitled under the contract to such compensation.

The first step a contractor must take if it wishes to submit a claim for additional time or money is to give notice. The contractor’s notice is dealt with under Sub-Clause 20.1 [Contractor’s Claims], which requires the contractor to give notice as soon as practicable and no later than 28 days of it becoming aware, or when it should have become aware, of the event or circumstance. Dissecting this further:

• the triggering event: the reference to ‘event or circumstance’ means that Sub-Clause 20.1 deals only with events or circumstances that have actually happened, and not possible events or circumstances;^[5] and
• time trigger: time for the notice begins to run from when the contractor became aware, or should have become aware, of the event or circumstance. The reference to ‘should have become aware’ means that the deadline is not restricted to actual knowledge, but extends to constructive knowledge too, and introduces an objective standard.

The notice starts the claims procedure under Sub-Clause 20.1. A contractor must then submit a fully detailed claim within 42 days of when it became aware, or should have become aware, of the event or circumstance. Where the event or circumstance has a ‘continuing effect’, the fully detailed claim is considered interim and the provision places a further obligation on the contractor to send further interim claims at monthly intervals, giving the accumulated delay or additional costs with further particulars. The contractor is then required to send a final claim within 28 days of the end of ‘the effects resulting from the event or circumstances’.

The contractor must also keep ‘contemporary records’ to support its claim and permit the engineer to inspect these records, obtain copies or instruct for additional records. The courts have held that contemporary records in FIDIC are ‘original or primary documents, or copies thereof, produced or prepared at or about the time giving rise to a claim whether by or for the contractor or the employer’.^[6] It is important to note that it has also been held that a witness statement could not stand as a substitute to the contemporary records required under this provision, so, while witness statements may assist in providing someone’s account of what went on during a project retrospectively, it will not be enough to satisfy this provision.^[7]

Then, within 42 days of receiving the claim with details, the engineer must respond, either approving, disapproving or requesting further particulars, all with ‘detailed comments’. The role of the engineer is explored further below.

FIDIC 2017 (Red, Yellow and Silver books)

The most recent (2017) editions of the FIDIC Red, Yellow and Silver books revised Sub-Clause 20.1 [Contractor’s Claims] to address the claims process for both employer and contractor claims so that they are aligned and, in turn, both the employer and contractor are subject to the same time limits and time bars for claims. Under the 2017 editions, there are four essential steps to making a claim:

• notify the engineer of a claim;
• engineer provides an ‘initial response’;
• submit a fully detailed claim; and
• agreement or determination of the claim.

With the exception of the newly defined term ‘notice’, very little has changed with regard to step 1, the notice of claim. As per the 1999 edition, a 28-day time limit is imposed on the notice of claim (Sub-Clause 20.2.1).

Step 2, the initial response, is a newly introduced provision in the 2017 edition. This step requires the engineer (or ‘the other party’ under the Silver Book) to give an initial response and its reasons within 14 days of receiving a notice of claim if it considers the claim is time-barred (Sub-Clause 20.2.2). If the engineer gives such notice, the claiming party will have to consider any circumstances that justify late submissions and include detailed reasons in its fully detailed claim. If no notice is given, the notice of claim is deemed to be valid. This provision is aimed at early resolution of claims and dispute avoidance by allowing ‘time bar’ issues related to the contractor’s notice to be raised at the earliest opportunity.

The claiming party will then have to submit its fully detailed claim within 84 days of when it became aware, or should have become aware, of the relevant event or circumstance, rather than the 42 days stipulated in the 1999 suite (step 3).

Sub-Clause 20.2.4 specifies that if the claiming party fails to provide a statement of the contractual or other basis of the claim within that period, the notice of claim is deemed to be lapsed and it is no longer considered a valid notice. Again, this new addition in the 2017 suite is to set a requirement on the engineer or employer’s representative to notify the claiming party if it considers that the claim is barred, within 14 days of the expiry of the 84-day period. If the engineer does not give such notice, the notice of claim is deemed to be valid and the claim continues, even if there is still a pending decision from the disagreement or disagreements under Sub-Clause 20.2.2.

NEC

Under standard form NEC contracts, the contractor’s entitlement to claim is dealt with by a ‘compensation event’. A compensation event means an event that can affect the cost of the work being carried out or the time when the works can be completed, or both. There are three categories of compensation event:

• an instruction or a change (unless by reason of the contractor’s breach);
• failure on the part of the ‘client’, ‘project manager’ or ‘supervisor’ to take action that the contract requires of them; and
• a supervening event where the risk has been allocated to the client under the contract.

Sub-Clause 61.3 of NEC4 sets out the mechanism by which the contractor can make a claim for a compensation event. The first part of Sub-Clause 61.3 sets out the contractor’s responsibilities to give notice to the project manager (largely unchanged from the previous edition, NEC3). Unless the project manager has already notified the contractor, a notice has to be given of an event that has happened, or that is expected to happen, if the contractor believes the event is a compensation event.

The second part of the Clause deals with the consequence of a failure to provide notice: ‘[i]f the contractor does not notify the compensation event within eight weeks of becoming aware that the event has happened, the prices, the completion date or a key date are not changed.’ This is a fundamental requirement of NEC4, which has changed subtly since NEC3 as the time starts to run on becoming aware, not of the event, but ‘that the event has happened’.

Unlike FIDIC Sub-Clause 20.1, Sub-Clause 61.3 of NEC4 only makes reference to the time the contractor becomes aware that the event has happened, not when it should have been aware of it. Sub-Clause 61.3 throws up a few ambiguities on interpretation. First, awareness is a subjective test and can be extremely difficult to prove. Second, the wording of Sub-Clause 61.3 is ambiguous as to whether ‘event’ is a reference to the date when the event itself occurred or the date when the contractor believed the event was a compensation event. Although, the latter interpretation seems more commercially reasonable because the former could result in a contractor being time-barred before he or she knows that he or she can advance a claim. The user guide refers to time starting to run on the contractor’s awareness of the ‘underlying event’, which, arguably, leaves further room for interpretation and debate over what is exactly meant by ‘underlying event’.

On the question of whether the notice provision in NEC4 should be construed as a condition precedent, the case of Sitol v. Finegold^[8] offered some insight into the English court’s strict interpretation of time bars and notifications as conditions precedents to an entitlement under NEC standard form contracts. While the case dealt with Sub-Clause 93.3 of the contract (which is the right to refer a dispute to the adjudicator if the party notified the other party of the dispute within four weeks of becoming aware of it) and not Sub-Clause 61.3, the court was, similarly, required to examine correspondence and came to a conclusion as to when a party became ‘aware of’ the dispute for the purposes of triggering Sub-Clause 93.3. On examining the correspondence, the court considered the claiming party to have been aware of the dispute earlier than it claimed and, in turn, concluded that the adjudication was time-barred.^[9] The decision gives a clear indication that the English courts are likely to enforce contractual time bars in NEC strictly, not just those related to adjudication.

JCT

The contractor’s entitlement to claim loss and expense on matters affecting regular progress under the JCT 2016 is governed by Sub-Clause 4.19, which states:

If in the execution of this Contract the Contractor incurs or is likely to incur any direct loss and/or expense as a result of [deferment of possession or because progress has been or is likely to be materially affected by a Relevant Matter] he shall, subject to clause 4.19.2 and compliance with the provisions of clause 4.20 be entitled to reimbursement of that loss and/or expense.

Notice provisions for such a loss and expense claim are set out at Sub-Clause 4.20, which requires the contractor to notify the architect or contract administrator as soon as the likely effect of the matter or nature and extent of the loss and expense becomes, or should have become, reasonably apparent. In Walter Lilly v. Mackay,^[10] in relation to Sub-Clause 26.1 of the JCT Standard Form Building Contract 1998 edition,^[11] Mr Justice Akenhead held that the timing of the claim could turn on when the contractor had actually incurred the relevant loss and expense (i.e., it could be prospective or retrospective).

The notification should be accompanied by or, as soon as reasonably practicable, followed by the contractor’s initial assessment of the loss and expense incurred and the further amounts likely to be incurred, together with such information as is reasonably necessary to enable the architect, contract administrator or quantity surveyor to ascertain the loss and expense incurred (which shall be updated at monthly intervals). The employer is required to provide its determination of the loss and expense incurred within 28 days of receipt of the initial assessment and information and 14 days of each subsequent update.

Whether or not the JCT notice provision amounts to a condition precedent to the contractor’s entitlement to claim is debatable. In view of the clear wording in the NEC and FIDIC contracts on the time limits for giving the notice and the consequences of non-compliance, some contractors may, quite reasonably, assume that there is no condition precedent in the JCT 2016.^[12] However, a comparison can be drawn to the clause regarding notice of delay in an extension of time provision in Steria Ltd v. Sigma,^[13] which provided that the subcontractor was entitled to an extension of time ‘provided the Sub-Contractor shall have given within a reasonable period written notice to the Contractor of the circumstances giving rise to the delay’. The English court held that the notice provision was a condition precedent despite there being no stipulation of a specific time limit by which the notice was to be given. Mr Justice Davies held that, ‘the fact that there may be scope for argument in an individual case as to whether or not a notice was given within a reasonable period is not in itself any reason for arguing that it is unclear in its meaning and intent’. He also confirmed that the notice provision was a condition precedent even in the absence of express wording to the effect that non-compliance would lead to a loss of entitlement.

Following this rationale, the lack of any strict deadline in Sub-Clause 4.20 does not necessarily mean that the Clause may not operate as a condition precedent. As such, the safest course of action is for contractors to assume that compliance with the notification provision at Sub-Clause 4.20 is a condition precedent to its entitlement to claim for loss and expense and to act strictly in accordance with contract procedure.

Claims brought by employers

Employer-initiated claims (or, indeed, more often than not, counterclaims to a contractor-initiated claim) typically revolve around time for delivery of the project, the quality of the works delivered (defects claims), termination and payment.

In recent years, there has been a shift in construction standard form contracts to include a provision on employers under contractual dispute resolution previously reserved to contractors.

FIDIC 1999

Until the 2017 edition of FIDIC, employers’ claims were dealt with separately to contractor claims, through Sub-Clause 2.5 [Employer’s Claims]. Under this provision, the employer is prevented, except in limited circumstances, from making any deductions from interim payment certificates or otherwise without first notifying its claim under Sub-Clause 2.5. The notification process triggers the employer’s determination under Sub-Clause 3.5, whereby the engineer is required to agree or determine the matter following a consultation period. The amount determined by the engineer can then be deduced from the interim payment certificate or claimed by the contractor.

Statutory time bars

A distinction that needs to be borne in mind between, on one hand, a contractual right that is subject to notice (such as the notice in FIDIC Sub-Clause 20.1) and, on the other hand, a common law claim for damages that might be excluded by a statutory time bar. This is particularly the case for employers that have a claim or a counterclaim for defective works.

The key question for calculating when limitation expires is the date of accrual of a cause of action. In a construction contract, a claim for defective workmanship usually accrues at practical completion, as this is the time at which the contractor’s obligation to carry out and complete works has not been complied with.^[14] However, an employer wishing to pursue a claim or counterclaim for defective works may run into difficulties on large projects where there is phased practical completion on a section or phase basis. In such a case, the time may run from an earlier date than project-wide practical completion.

Claims before the engineer: engineer’s determination under FIDIC

Engineer’s role and qualifications

Typically, in construction contracts a party is designated the administrative functions under the contract. Under the 2017 FIDIC Red and Yellow books, this is performed by the ‘engineer’.^[15]

Usually, the engineer is engaged by the employer and it acts as the employer’s agent to administer the contract during the construction process to ensure the contractor has met the technical construction specifications outlined in the contract. The engineer acts as the main point of contact with the contractor and may make determinations, where necessary. Among other responsibilities, the engineer will play an instrumental role in issuing construction instructions, authorising payment certificates for completed works and extending time under the contract, if needed. Typically, an engineer will also review the contractor’s time schedules, issue notices relating to failures (and oversee the subsequent corrections) and issue certificates, such as the taking-over certificate and the performance certificate.

The FIDIC 2017 Red Book, Sub-Clause 3.1 [The Engineer] requires the engineer to be ‘a professional engineer having suitable qualifications, experience and competence to act as Engineer under the Contract’ and to be fluent in the language of the contract.

Engineer’s duties

In the FIDIC 2017 Red Book, the engineer shall be deemed to act for the employer, pursuant to Sub-Clause 3.2 [Engineer’s Duties and Authority], except as otherwise stated.^[16] Sub-Clause 3.7 [Agreement or Determination] provides that, when carrying out duties under Sub-Clause 3.7, the engineer shall ‘act neutrally between the Parties and shall not be deemed to act for the Employer’. Further, according to Sub-Clause 3.2, there is no requirement on the engineer to obtain the employer’s consent before exercising any authority under Sub-Clause 3.7, and the employer is not permitted to impose further constraints on the engineer’s authority.

Agreement or determination procedure

The engineer’s role in managing the procedure for claims and disputes under Clause 20 [Employer’s and Contractor’s Claims], where the engineer provides an initial response to notice of claims, is discussed above. Here, the engineer’s role in dispute avoidance through the process of ‘agreement or determination’ is considered. Under the determination process, the engineer plays an important role in encouraging agreement in the event of claims or disputed matters between the parties with the aim of attempting to resolve disputes to avoid a claim escalating to formal proceedings.

The procedure for obtaining the parties’ agreement or determination is set out in Sub-Clause 3.7 of the FIDIC 2017 Red Book. The effect of the engineer’s agreement or determination, pursuant to Sub-Clause 3.7.4, is that it is to be binding on both parties unless it is corrected or, in the case of a determination, it is revised under Clause 21 [Disputes and Arbitration].

Sub-Clause 3.7.1 requires the engineer to consult with the parties in an attempt to reach an agreement. If agreement is reached between the parties, Sub-Clause 3.7.3 requires the engineer to give notice to both parties of the agreement, which shall be signed by both parties.

Where no agreement is reached, the engineer is required to make a fair determination of the claim, taking due regard of all relevant circumstances. Sub-Clause 3.7 sets a time limit of 42 days to make a determination. In the event the engineer does not make a determination or notice of agreement with regards to a claim, the engineer is deemed to have rejected the claim. If the engineer does not respond to a matter to be agreed or determined, the matter shall become a dispute and can be referred to the DAAB under Clause 21.

Each party is entitled to challenge the engineer’s determination, provided it does so within 28 days (via a notice of dissatisfaction). If this period lapses, the determination becomes final and binding.

Notes