FREQUENTLY ASKED QUESTIONS

A single CLS multi-qualified technico-legal expert often does the job of a team of engineers, quantity surveyors, schedulers and lawyers providing an inexpensive initial assessment of any claim. Typically, one of our experts generally reviews the contract and records of a dispute and alone determines if a claim for cost or time does exist together with its legal standing. This is by far the lowest cost initial option and a good reason our clients stay with us.

Our experts also asked to review all of the records of a project before closure to identify claims that may have been missed - and yes, we usually find many.

Our professionals are also called mid-way through project execution when a dispute is escalating. We assist in identifying the 'real' issues behind the dispute and then re-steer project correspondence to ensure entitlement, overcome time-bars and make sure we can rely upon it later if the dispute fails to settle.

We are experienced presenters and we often brief CEOs, management and in-house and external counsel. We also attend settlement conferences and act as expert witnesses.

On a transport project claims for Temporary Detours had been accumulating for almost 18 months and remained unresolved. The subcontractor argued that new detours over and above the handful identified in the tender documents were 're-measurable' as per the BoQ in the contract (which included a handful of known and documented/ BoQ measured detours). The subcontractor's claim for an adjustment to the BoQ for all additional detour works stood at AUD 40m at the time CCALC was called to review the merit of the claims.

Once a CLS expert carried out a thorough review of the contract, it became evident that the fully designed ‘permanent works’ were re-measurable as per the rates in the BoQ, but because of the unknown number of temporary detours required at tender stage, all ‘temporary works’ were made Lump-Sum D+C and allocated as a subcontractor's risk. Once our expert clarified the hierarchy of documents and the meaning of the relevant clauses to the PMC contract administration team, it became obvious that the subcontractor’s claim for re-measure was ill-conceived. Our argument was summed up as ‘what is Lump Sum D+C is not re-measurable' - the subcontractors claims were withdrawn.

It takes a trained eye to identify the root cause of the issues: We concluded that the subcontractor's estimators priced only what was in the BoQ at tender (the handful of identified detours) and assumed that the contract was wholly re-measurable - a fatal mistake. But we also noted that the consultant measured these detours in the BoQ included with the tender documents, which was unnecessary and the probable cause of the confusion in the contractor's estimating ranks. The multi-million dollar loss could have been averted by conducting a professional review of the contract before signature.

Reading the media reports on the decision in Karratha and the current trend in the labelling delay claims as 'composite', 'global', 'multiple-event' as if it were novel terminology, makes us realise the lack of maturity in the claims space in Australia. The 'recent decision' creates the same precedent in Australia that can be found in hundreds of similar decisions in the UK, Europe, and the US over the last 20 years.

CLS believes that the trend to justify delay claims with Windows Analyses, and asking a contractor go to court with a composite or global claim is fraught with the danger of loss, simply because the overseas experience proves over and over that less than 20 percent of composite global claims are successful.

A global/ composite claim argument appears as: ''Completion was delayed for all of these reasons, we do not know the exact contribution of each one to the overall delay, but together they must add up to the total delay we suffered on the project." Courts like certainty, and it is easy to see why this oversimplified argument would have little chance of success.

As analysts, we saw the merit in many sub-heads of a global claim we recently defended against. But we also saw the many hidden contractor concurrent delays that were not accounted for in the analysis. Then, productivity rates were guessed and not measured so the courts could not rely on the material in front of them to decide for the contractor. We succeeded in our defence but felt somewhat sorry for the contractor: We would have recommended our client to pay individual meritorious claims had they been split and presented separately - no doubt the contractor was poorly advised in its claims strategy.

We are aware of many legitimate avenues available to overcome deficiencies in claim justification and substantiation. Our well-structured and fully substantiated claims provide greater chances of success.

‘We were so busy delivering the project that we were unaware that we were entitled to many of the claims CLS professionals identified by reviewing our project files. We were lucky to have them on board before we closed the project."