Requesting relief under construction contracts: best practices

Requesting relief under construction contracts:

BEST PRACTICES

Our firm was recently asked to provide thoughts on best practices in pursuing additional compensation and/ or adjustments to the schedule to complete work on construction contracts (“Relief”) .

Recognizing that the terms “changes” and “claims” are typically addressed in contracts, we are sharing some of the observations that we have heard clients voice over the years .

These observations relate to concerns that have impacted the process of issue resolution during project delivery and often obstructed relationships between key stakeholders .

The following are the concerns and our specific suggestions for the “top 10” best practices, recognizing that contracts and situations differ .

1 BASIS

Concern: “We don’t know the contractual basis…”

Best Practice: Establish the contractual basis and the specific provisions being relied upon in seeking relief .

2 NOTIFY

Concern: “We were not notified…”

Best Practice: Provide a contractual notice that is complete, timely and compliant with the specific requirements of the contract .

3 RESERVE

Concern: “If only we knew…”

Best Practice: Even if the matter may not lead to Relief, notify the other party, and retract in the future if Relief is not required .

4 UPDATES

Concern: “We could have taken measures…”

Best Practice: Provide regular updates and interim submissions during the progress of the work, including any mitigation actions put in place to enable the other party to make informed decisions .

5 MAINTAIN

Concern: “If only you would have kept sufficient information…”

Best Practice: Maintain and compile sufficient schedule and cost information that can support the pursuit of the request .

6 DETAILS

Concern: “We have not been provided with sufficient information…”

Best Practice: Provide sufficient details and substantiation, including any contractual substantiation requirements to enable the other party to understand and address the Relief being sought .

7 SUBSTANTIATE

Concern: “There are no supporting records…”

Best Practice: Ensure that the request is supported by relevant contemporaneous records that support the details provided .

8 CONSOLIDATION

Concern: “We are receiving the information at the end of the project…”

Best Practice: Avoid consolidating requests into one submission . Notify, update, and provide details on an individual, progressive, and timely basis .

9 CAUSATION

Concern: “We cannot link the cause to the effect…”

Best Practice: Link events or documents to effects and demonstrate a causal link in a manner that will assist in the review and resolution .

10 PRESENTATION

Concern: “We don’t fully understand what is being sought and why…”

Best Practice: Present the request for relief in a manner that is clear, concise, and supported by records/substantiation .

About the authors

Daniel Josiah, PGDip, PQS, MRICS, MCIArb, is Director, Contracts & Commercial with Lakeland Consulting Inc ., where he provides services to a wide range of clients in the private and public . Daniel has a particular expertise in issues around scope, schedule, and cost, and has prepared expert reports for the purposes of negotiation, alternative dispute resolution, and litigation . In 2020, Daniel was selected by On-Site Magazine and SitePartners in inaugural edition of the 40 under 40 in Canadian Construction .

Zain Ghaffur, LL .M ., BSc (Hons), MCIArb, is a Senior Contracts & Commercial Specialist with Lakeland Consulting Inc . Zain advises clients on all phases of projects, particularly in relation to matters of contractual claims and disputes . He is currently working on a large-scale infrastructure project supporting the review and resolution of complex contractual issues .

Note: The above is provided for informational purposes only and does not constitute legal or other advice or an opinion of any kind or a substitute for legal counsel. The reader of this paper is advised to seek specific legal advice regarding any specific legal issues or concerns.

Construction Claims & Dispute Resolution

CAUSE EFFECT ENTITLEMENT SUBSTANTIATION

SCHEDULE DELAY AND DISRUPTION

LOSS OF PRODUCTIVITY / EARNED VALUE

CUMULATIVE IMPACT OF CHANGE

DAMAGES QUANTIFICATION

PROJECT ADVISORY

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ADJUDICATION, LITIGATION, ARBITRATION COURSE OF PROJECT ADVICE – DISPUTE AVOIDANCE CONTRACT DRAFTING AND NEGOTIATION COLLABORATIVE CONTRACTING TRAINING

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MARTIN HOEY | Practice Lead, Construction Claims martin.hoey@envistaforensics.com