Wednesday 20 January 2016

Construction Claims and Responses: effective writing and presentation

This article will teach you how to professionally prepare and present construction claims and responses in such a way that helps to ensure their success without dispute. You will be guided through the essential elements to a successful claim, the key points for an effective claim or response, how to present the claim or response and finally, how to structure your narrative.

After you study this article, you will have significant guidance on how to prepare, present and respond to construction claims in such a way that results in its success.

Why is it necessary to produce a fully detailed and professionally presented claim or response?

An inadequately expressed claim will at worst result in rejection or at best will result in delay while the party responsible for determining the claim requests additional particulars. Remember, It is the claimant’s responsibility to prove that the claim is just.

A response that does not set out adequate reasons for the determination runs the risk of either party elevating the matter to a dispute, thus incurring the parties in needless expense and time.

The Essential Elements of a Successful Claim

The Essential Elements of a Successful Claim: Cause, Effect, Entitlement & Substantiation

The essential elements of successful clams must clearly mention following items:
C ause
E ffect
E ntitlement
S ubstantiation
  • The Cause is a factual explanation of what happened.
  • The Effect is how the cause affected the time for completion or contract price.
  • The Entitlement provides the claimant with the right to make a claim and is usually contained within the contract, or occasionally provided by law.
  • Substantiation is required to demonstrate that assertions made or facts relied on within the claim are accurate and correct and is usually provided by including copies of the project records within the claim.

Failure to include all of the above within a claim could be fatal to the claim.
Failure or address all of the above within a response or result in the response being disputed.

Key Points for an Effective Claim or Response

Key Point No. 1

Make the reviewer’s job as easy and as pleasant as possible.

If you make the reviewer's job difficult or unpleasant, he or she is unlikely to be sympathetic to your claim.
Key Point No. 2
Ensure that the claim or response document is a stand-alone document.
No reviewer wishes to spend time searching the records to verify the claim or response and in some cases will refuse to do so.
At best, the reviewer will be unsympathetic to an inadequately expressed document, at worst, a claim may be rejected as not proving its case, or a determination may be elevated to a dispute.
Key Point No. 3
Assume that the reviewer has no prior knowledge of the project.

It is not always the case that a claim or response document will be reviewed by someone with intimate knowledge of the circumstances and this will certainly not be the case if the matter proceeds to a dispute or arbitration.
It is dangerous to assume that the reviewer has the same knowledge as the person preparing the claim or response and even if they do, they may not have the same opinions.

Presentation of the Claim or Response

Ensure that the submission document is well presented. 
  • A professionally presented document illustrates the professionalism of the party who has prepared it.
  • A badly presented document will do the reverse. 
  • It is necessary to inspire confidence in the submission.
Ensure that the document is user-friendly. 
  • This makes the reviewer’s job more pleasant and elicits sympathy, rather than the reverse.
  • Present the narrative and appendices in separate volumes.
  • Provide labeled dividers between sections and appendices.
  • Use suitably large fonts, line spacing and margins in the narratives.
Use the narrative to lead the reviewer to a logical conclusion 
  • You must make conclusions within the narrative.
  • If you leave the reviewer to make his or her own conclusions, they may not be the ones that you were intending.
  • A narrative should tell a story so that a person with no prior knowledge of the circumstances may arrive at a logical conclusion, which is the one you were seeking.
Use the narrative to explain other documents attached as substantiation or in support of the narrative.
  • Provide full explanations of programmes, calculations, financial calculations and the like that are contained in the appendices, so that some one with no prior knowledge of the project, circumstances or the type of other documents may fully understand them.
Ensure that wording, titles and the like included in supporting documents are consistent with the narrative.
  • If, for example, the narrative refers to ‘additional payment’ but the calculation sheets are labelled ‘cost calculations’ this firstly confuses a reviewer and secondly, exhibits a lack of professionalism of the person and company who has prepared the document.
  • Any negative perceptions in this regard may influence a reviewer into thinking that if the document is not well presented, then it may not have merit.
Ensure that the logic contained in supporting calculations, programmes and the like is explained clearly.
  • The person reviewing programmes, quantities and financial calculations may not be an expert in these disciplines, so it is necessary to use the narrative to guide the reviewer through the logic and to provide an audit trail, so that they are fully understood.
Ensure that statements made are substantiated by reference to the project records or other documents and include copies of such documents as substantiation.
  • Just as a lawyer does not go to court without proof and evidence to support his case, a claim or response must prove that statements made and assertions made therein are true.
Take care with prose, grammar and punctuation and ensure that the narrative is easily read and properly understood.
  • Correct grammar and the like will add credibility to the claim or response and support the fact that it has been prepared in a professional manner.
  • Misunderstanding of points made may influence the outcome negatively.
Avoid the use of acronyms and abbreviations.
  • Acronyms and abbreviations may confuse the reviewer and lead to misunderstanding.
  • If the project records include acronyms, include definitions in the claim narrative.
 Keep the writing style simple and direct. Avoid ‘legalese’ and unnecessarily complicated language.
  • Complicated language may lead to misunderstanding or confusion of the points being made.
  • The object of the claim or response is to be properly understood, not to impress a reviewer.
Ensure that references to the parties within the narrative are unambiguous.
  • To avoid misunderstanding, always refer to the parties either by name or by designation such as ‘the Contractor’, ‘the Employer’, ‘the Architect’ etc. or use their company names.
When possible, use the actual wording of clauses rather than paraphrasing their meanings.
  • Quotations from the contract may be used to great effect in a narrative.
  • The use of actual wording from the contract ensures that the reviewer understands that the intended meaning of the clause has not been manipulated to support a case.
Identify quotations correctly and consistently.
  • Direct quotations from the records or contract may be used to great effect to support the claim and to help to ‘tell the story’.
  • When quoting from the records or the contract, ensure that the reviewer knows that it is direct quotation by the use of quotation marks or the like.
  • If incorrect spelling or grammar is contained in the document being quoted from, you must include it exactly as written.
Ensure that the submission document is well ordered and indexed to enable a reviewer to quickly find documents.
  • Remember that we need to make the reviewer’s job as easy and as pleasant as possible.
  • Labelled dividers with the appendices will help to achieve this.
Present reference material and documents used as substantiation in a separate volume to the narrative.
  • If the reviewer is able to read the narrative and at the same time have the appendices open for reference and verification, it will make his or her job easier and more pleasant.
Ensure that a 3rd-party review is carried out before finalisation of the document.
  • Remember that the document should be easily understood by someone not familiar with the circumstances.
  • Also be aware that when a person proofreads something that they have written themselves, they often ’read’ what they think is written, rather than what is actually written.
  • A review by a colleague or 3rd party will pick up mistakes and also highlight areas that may need to be improved upon for a proper understanding.

The Narrative

The following is a suggestion of the sections to be included within a typical claim or response:
  • Front cover
  • Contents
  • Executive Summary:
    • Summary of the document – maximum 2 pages
  • Statement of Claim:
    • Brief details of the contract, project, nature of the claim, circumstances giving rise to the claim, cause, effect and entitlement
  • Definitions, Abbreviations and Clarifications
  • The Contract Particulars
  • The Method of Delay Analysis
  • Details of the Claim for an Extension of Time:
    • Cause, effect, delay analysis, entitlement
  • Details of the Claim for Additional Payment:
    • Cause, effect, entitlement

The Appendices

The following is a typical list of items to be included in the appendices in support of the narrative:
  • Exhibits:
    • Letters, minutes, site records, etc.
  • The Baseline Programme
  • Delay Analyses Programmes
  • Drawings
  • Photographs
  • Cost Calculations
  • Substantiation of the Cost calculations:
    • Labour and plant records, quantities, payroll, invoices, etc

Responses and Determinations

Everything that applies to the claim applies equally to a response document. In summary the main points are:
  • User friendly
  • Stand alone document
  • Lead to a logical conclusion
  • Professional presentation
  • CEES

Source: Hewitt, A. (2016). Construction Manager CPD - Login. [online] Available at: [Accessed 15 Jan. 2016].