claimmaker introduction



Providing experts to support your project,
B CARD_2594 to get your money back
take lots of photos, write a good story 
who will help you? - we will

how do projects get late? –  one day at a time
what is critical? – all unfinished work is critical
what can be done? – claim giving lots of reasons
how to be believed? – take lots of photos, then write a good story is ideal when you need to :-
claim for time and cost,
communicate from your smartphone
send the results immediately to your expert advisor

Claim Summary

Differences in the Contractors Plan between Tender and Completion/As Built is best expressed as hand drawn time/space diagrams, weekly/monthly work site sequences, flowcharts, and Site Phasing Diagrams
Cap 4

Cap 5
Employer Provided Site
NEC Foreseeability

Contract price does not include :-
Unforeseeable Events 19.1, (60.1(12) and (19)
-physical conditions which Contractor
could nor prevent and low probability of occurrence
(How can Contractor at Tender known what the Employer could prevent?)
Physical Conditions and Events Reasonably Unforeseeable see 60.3

Site information : 11.2 (15) and (16)
 read contract and summarise (mind map)
 including public domain references 60.2, 
then Visually Inspect Site and
summarise observations and deductions (mind map).
60.2 Brainstorm other info reasonably have or obtain (in time available). 60.2 From summaries define Physical Conditions (most favourable 60.3)
Define Excluded Physical Conditions not in tender  60.1 (12)
Document tender allowances for Physical Condition (time and money) 60.1 (12)
Events 11.2 (19) Works Info - read contract and summarise (mind map). 60.1 (19) 
Brainstorm events which may occur and summarise (mind map). 
Define Excluded Events and judge which events need not be allowed for in tender 60.1 (19). 60.1 (19) 
Document tender allowances for Events
Difference between encountered and allowed for Physical Condition and Events is a CE 60.1 (12) and(19).
If Physical Condition or Events prevent completion or delay Planned Completion date PM must instruct remedy 19.1
Contract Documents review

z clauses
Risks - what do they mean
Defined Cost and cost of producing CEs
Uncooperative PM
Method Statement
Defined Costs methodology
Weather Data
BoQ and Methods of Measurement
Design and drawings - are they good enough?
Can you see what you have to plan?
Development Consent Documents Review
such as Environment Statement and Construction Methodology

These are key to a contract claim. Dysfunctional Contracts frequently show massive scope increase and this destroys compliance with formal, legal undertakings given to obtain development consent. These undertakings will  often include :-

Number of workers, journeys to work
Number of lorry trips
Disposal of surplus materials

A mistake had been allowed to develop during a prolonged period of feasibility studies when design quality assurance had broken down. 
This led me to identify engineering disease called feasibilty-itis when common sense gets abandoned in the absence of change control and design process.

The consequences get uncovered when project enters final detailing and construction, often after agreeing NEC lump sum contracts and accepting NEC Programmes for Acceptance and leading to un-budgeted Compensation Events for Delays.  

When it comes to documenting site problems we recommend 
An example of feasibility-itis is described at
Site Information Review

Tender has to reflect WI not SI which is only referred to in 60.2, however consider "unforeseeables"

Unless staged release of site area is defined in Works Information then whole area is to be provided by Employer at Access Date. Site to be available from Access Date until Defects Date. Note any Working Areas (15)

PM has no power to alter Site Information. 
Site must be defined within Contractors Plan or Site Boundary drawings. 

Employer needs to promptly and reliably deliver legal agreements to access and defend Contractor against 3rd Party claims, depending on risk and insurance responsibilities agreed otherwise Employer Breach.

ICE 5th Edition provided for Contractor to possess Site. 
NEC only provides “Access”. 
This needs rationalising considering Contractors Duties under CDM Regulations
Analyse the Construction Methodology which is a requirement in the Environment Statement attached to the Development Consent
3D Design during Construction

Where design is awaited, the programme is tentative and items will require re-validation when design is received
Design during Construction is always high risk. 
Too many designers are ill disciplined and incompetent. 
When you engage a designer always have a spare ready for when the first needs dismissal. 
One £10 m project saw the back of 3 major design companies who could not deliver high quality design in accordance with their contracts
Once Though Engineering (1TE)
CD2 to be qualified and programmes to show 1TE
NEC Background

NEC is for engineers, programme, resources, methods are central to dealing with EWNs and Compensation Events
NEC require Contractor to re-plan monthly, re-plan for every “event”, list out everything that Employer/PM is expected to do, list events and impacts - effectively PMIs/NCEs. 
NEC brings analysis and discussion forward into construction phase with strict time tabling for notifications and decisions
Programme is more important than Activity Schedule (or BoQ), and is central to defining interactions between Employer and Contractor
Prices in CD2 together with any explanations, qualifications are agreements between the parties and not subject to jurisdiction of Project Manager.
NEC Early Warnings and programme

EWN for are future risks. For historic and certain Events go to notifying CE 3/30
Do you have pointless, routine Early WarningsNEC  is for real engineers not CONTRACT ADMINISTRATORS. 
Defining likely impacts on programme, resources, methods are central to dealing with Early Warnings
Early Warnings and reduction in floats (reduced floats mean more risk) and changes in resources need to be shown and explained in the Weekly Programme NarrativeEWNs must be identified against Activity ID 
Mini Programme needs to be added showing when a decision needs to be made, when you will stop work if a decision is not made, for solution then concept, resources, process all this should lead to extending date for Contractors Planned Completion

On NEC and need to preserve your profits? : You need a really good programme


Programmme, resources, methods are central to dealing with Compensation Events
NEC is meant to be a collaborative (one team) contract and cl 10.1 requires early and honest reporting of events and impacts
NEC has no provision for oral or informal communications thus either WI changes have to be confirmed 60.1(1) as a PMI or a 61.3 NCE from Contractor (effectively a claim). 
Whereas the Contractor has to proceed with a PMI whilst the CE is assessed, he has no obligation to commence work agreed orally and can insist that CE is agreed before commencement 
Types of Works outside those defined in the Works Information are outside the jurisdiction of the Project Manager. 

For example the Contractor tenders to construct the Works..then it is discovered that the design is incomplete

Project Manager instructs the Contractor to complete the design..he cannot…A Supplement to the Contract needs to be agreed between the parties
Is  PMI outside scope ? In Thorn -v- London Corporation (1876) 1 App.Cas.120 Lord Chancellor said of variations "If it was additional or varied work, so peculiar, so unexpected, and so different from what any person reckoned or calculated upon, that it is not within Contract at all; then, it appears to me, one of two courses might have been open to him; he might have said: I entirely refuse to go on with Contract - non haec in foedera veni: I never intended to construct this work upon this new and unexpected footing. Or he might have said, I will go on with this, but this is not the kind of extra work contemplated by the Contract, and if I do it, I must be paid a quantum meruit for it."
Contract is limited to Works within Boundaries of Site and Working Areas

Where Employer wants additional work performed outside Site he cannot allow Project Manager to instruct work as that would be unlawful
A Supplement to the Contract needs to be agreed between the parties

At this point the Contractor has the upper hand..he is incumbent, he is not in competition, he can demand clauses that rectify previous injustices inflicted by Project Manager.  

Additionally using lawyers will mean negotiation will take weeks and months…
Treat a CE quote just like an original bid - with risk reviews, settlement meetings and not least a programme including for producing CE - just as in Estimating Departments. Notify within 8 weeks. Rough pricing including risk %
Compensation for acting as Last Checker

Changes lead to a CE, not least for extra engineering effort

Contractor having to operate as "Last Checker" worsens level of risk massively
When you receive a PMI or if you issue NCE then issue an Early Warning for the risk of non-payment in full then ask for a Risk Reduction Meeting to start debate leading to a CE
Contractual Basis needs to be defined

Include Reasonably Improbable Physical Conditions or Weather or Event and EWN impacts (limited to those which are Not Unreasonable Foreseeable and immeasurable) either currently happening or with a high probability of future occurrence
60.1.(19) Shorter winter working hours, tube strikes, logistics failure
60.1 (13) Exceptionally Inclement Weather
Compensation for Contractors change in Material Where contractor selects a different material during construction from that he chose to base his price on then NEC3 does not prevent a CE being raised
Compensation for Work in Progress  % extra for WIP
Compensation applicable to all subcontractors  Is one sub entitled to anothers EOT?
Output Compensation Events arising from decisions made by Contractor will be notified
Input Compensation Events include :-
Acts of Prevention and Reasonably Unforeseeable Events
Compensation Events – Risk of errors whilst performing extra work
Compensation Events : Cost of Managing 1/53, 3/18
11.2(22) Defined Cost : excluding cost of preparing quotations for compensation events
This does not prevent Contractor from raising under 60.1.19 that he want a Compensation Event for overing cost of managing quotations

Cost is not in Preliminaries as they would not have been provided for in Tender Price
Compensation Events – Numerous 3/31, 80-81
Compensation Event relate to principal Equipment and other resources
Programme aspects 3/39-40
Programme is required (64.1, 64.2) with alterations to Accepted Programme (62.2) showing assessed delay to Completion (63.3) provided Accepted Programme can be changed (63.7), including Risk Allowances (63.6) and assessment is not reduced if forecast is wrong (65.2)
If Completion Date is not adjusted due to incidence of Compensation Events then “Time at Large” emerges. 61.3
Compensation Events on Programme and input sequence Add topics to WBS - much more impact. Compensation Events per Worksite Bar: a bar for CE is shown for each Worksite expressing cumulative effect of CE s
COMPENSATION Events are shown and Weekly Programme Narrative should discuss changes in floats (reduced floats mean more risk) and changes in resources

Put on programme with reference to relevant clause

As soon as possible a Mini Programme needs to be added showing when a decision needs to be made, when you will stop work if a decision is not made, for solution then the concept, resources, process all this should lead to extending the date for Contractors Planned Completion
Cause and Effects Recording  - Best practice

Events and Causes are easily documented
Impacts and Effects are usually less well documented

The ideal is to write Daywork Sheets, priced and signed daily by Employer and to have Daily Approximate Cost vs Value per subcontractor

Records must explain in the words of Rudyard Kipling 
"I keep six honest serving-men
 (They taught me all I knew) 
their names are What and Why and When
 and How and Where and Who?" 

For Delay purposes the following are needed :
Events: Correspondence, Minutes of Meetings, Programmes, Instructions all identified against Activity ID 
Work : Drawings, Specifications and QUANTITIES
Movement of Resources to be traced against Activity ID
Identify Overall Time of Delay - not just time spent doing site work