Andy Hewitt

things contractors get wrong when it comes to claims

The Top 10 Things Contractors Get Wrong When it Comes to Claims

At Hewitt Decipher Partnership we have many, many years of experience of claims. We have prepared them for contractors, responded to them for consultants and employers and have provided expert reports on them in disputes. We often see the same issues crop up time and time again. So to stop you making those mistakes, we’ve put together a list of the things that contractors frequently get wrong when it comes to claims.

1. Failure to give notice.

The giving of notices is usually an obligation and is often a condition precedent to entitlement. Yet, contractors frequently either do not give notice or when they do, the notice is not submitted in a suitable form, or does not contain adequate information.

How to avoid this mistake?

Firstly, make sure you give notice. The form and manner in which you should submit your notice will usually be set out in your contract.

2. Failure to submit claims on time.

If you leave your claim until the end of the project, it will be harder to resolve. If the project has been handed over, this will become even more difficult.

How to avoid this mistake?

Submit your claim as soon as you become aware of the problem. Our friends at Claims Class have some useful advice on the timing of claims and notices in this blog.

3. Submitting consolidated claims.

Contractors seem to like to wait until several delay events have occurred before submitting an extension of time claim and then they submit one claim for several events. This is not good practice. Firstly, this delays the submission of the claims for the early delays. Secondly, one large, complicated claim is harder to respond to than several individual claims. Finally, if they employer does to agree with one event, the settlement of the whole claim will be held up.

How to avoid this mistake?

Don’t hold up the submission of claims. Submit your claims as and when issues occur and keep them simple. Don’t confuse multiple issues, and make it easy for the employer to assess your claims.

4. Failure to keep records.

You must substantiate any claim you submit. This substantiation will rely on contemporaneous records. If robust contract administration systems are not created and administered, then it becomes difficult to substantiate the matters relied upon in the claim and the claim will fail.

How to avoid this mistake?

Records, Records, Records. Keep and maintain good records. Decipher have some useful advice on what ‘good record keeping’ actually looks like in this video.

5. Failure to provide accurate progress reports.

Contractors are often “creative” when reporting on progress because they don't want to give bad news or face criticism. If no delays were reported contemporaneously, it subsequently because difficult to change the story in a claim for an extension of time.

How to avoid this mistake?

Be honest about the position of the project. If you can see a potential delay on the horizon, report it as soon as you are aware so sets can be taken to mitigate. Don’t bury your head in the sand and wait till it is too late – be proactive.

6. Failure to maintain accurate updated programmes.

To demonstrate the effect of claimable delays, you will need an up to date version of the programme. They are vital in a claim situation. If these do not exist or they are inaccurate, the demonstration of delay and cost entitlement will become difficult.

How to avoid this mistake?

Keep the programme up to date and be sure that it reflects accurate progress on the project. Don’t be tempted to manipulate the programme to avoid showing delays to the completion date.

7. Failure to link cause with effect.

For a claim to succeed, it is necessary to demonstrate that the event had an effect on the completion date and /or entitlement to payment.

How to avoid this mistake?

Follow our ‘Four Corners of a Claim’ method of claim preparation. This will make sure you have included everything necessary for the claim to be accepted.

8. Failure to establish contractual entitlement.

Contracts provide remedies to the contractor if certain types of events occur. The claim must demonstrate that the contract provides entitlement to compensation for the event on which the claim is based.

How to avoid this mistake?

Make sure you understand the contract and your obligations and entitlements. Often the contract is not referred to until problems arise, at which point it is too late. Strong contract administration will help you be sure of your entitlement.

9. Inadequately expressed claims.

It is not enough for entitlement to exist – it must be demonstrated. If the respondent cannot understand the claim or if the claim does not contain sufficient information for the matters relied upon to be verified, an award will not be forthcoming.

How to avoid this mistake?

Include the relevant information, appendices and evidence to back up your claim. Make sure it is presented clearly. Make it clear and easy for the employer to follow and understand. Paul has some useful advice on preparing claims in this podcast.

10. Lack of claims expertise.

It is unlikely that a contractor would employ a plumber to carry out electrical installations. Why then do contractors leave the preparation of claims for what may amount to huge sums of money to inadequately qualified, inexperienced staff who have little expertise?

How to avoid this mistake?

Bring in help early. It is often tempting to wait until a problem occurs, but by that point it is often too late. Getting support from the outset of the project, either in the form of training, contractual advice or claims management support can help you avoid issues later on.

Hewitt Decipher Partnership’s expert consultants have been preparing and responding to claims for many years. We know how to comply with good practice to ensure that a justifiable claim is presented in such a way to ensure that it is accepted in a timely manner and so that disputes are avoided.

Can we help you? To find out how, get in touch.


FIDIC 2017

Why do contractors make so many mistakes when it comes to notices?

FIDIC 2017 Notices: A new book by Andy Hewitt

In the many years I have been helping people manage their construction contracts and claims, I don’t think I have come across a single issue that causes more problems than notices.

Failure to comply with contractual obligations related to notices often leads to disputes.

Over the course of the last twenty years, I have delivered training on managing claims and avoiding disputes all over the world. Notices are one of the most common issues I am asked about by attendees.

So, what is it about notices that causes people so many problems?

Some of the most common mistakes include:

  • Failure to give notices when obliged to do so by the contract.
  • Failure to give notices within the time-frames specified in the contract.
  • Failure to properly identify communications as notices.
  • Failure to record the necessary information within notices.
  • Failure to cite the contractual clause under which the notice is given.
  • Failure to address and/or copy the notice to the correct party.
  • Failure to deliver the notice to the place specified in the contract.
  • Failure to deliver the notice by the means of communication specified in the contract.

FIDIC recognised that these failures were causing significant problems and leading to disputes. So, in the 2017 editions of their contracts they introduced a contractual definition of a notice. They also added significantly more obligations to give notices and more opportunities to give notices than had been included in the 1999 editions.
But are these changes enough to address the problem?

Failure to properly administer the contract is a top cause of disputes. After many years in this field, I know that project teams often put the contract away in a drawer, only to dust it off when problems occur. Often, project teams are unaware of the implications of contract clauses and don’t fully understand their obligations.

I hope my new book will help make things simpler.

In FIDIC 2017 Notices, I examine each clause of the 2017 editions of the FIDIC Red, Yellow and Silver forms of contract that require notices to be given by the Contractor, the Employer and the Engineer. For each, I provide an explanation of why, and under what circumstances, each notice is required. I’ve also included real-world, written examples of typical notices for each clause, to make things event clearer.

My hope is that this new book will help make dealing with notices clearer for anyone working under FIDIC 2017.
If it sounds like this might be useful to you and your project team, you can order your copy here. Alternatively, get in touch or find out more about bespoke training on FIDIC 2017 for your team.


Delay & Progress Updates | why honesty is the best policy

There are many ways that contractors can shoot themselves in the foot when it comes to claims. Being less than truthful when reporting progress to the employer’s team is one of them. This is a problem that we are often faced with when we have been brought in after the contractor has already suffered delay and realises that he/she needs assistance to secure an extension of time.

Why Honesty is Always the Best Policy

Yes, it's tempting to report good news month-on-month and a less than competent consultant on the employer’s side may even believe the reports. After all, good news will not lead to additional and tricky work for them.

The problem with this is that if delay has occurred and the contractor needs and is entitled to an extension of time, it then becomes very difficult for him to subsequently tell the employer’s team:

“I know we kept telling you that there was no delay to the completion date but actually, there is and it’s not our fault, so please can I have an extension of time.”

A progress update, as-built programme or updated programme (all different names for the same thing) is created by using the latest agreed programme. Actual start and finish dates are added for each completed activity along with the percentage progress for activities in progress, as of the data-date of the update. The logic contained in the programme and the programming software will then predict the completion date based on progress to date.

Before I started to specialise in contractual matters and claims I was a project manager for both contractors and consultants and when my planning team produced a progress update, I wanted only one thing from them and that was…

THE TRUTH.

If the update predicted early or on time completion then I knew that we were doing okay, but if the update was predicting a delay, then I needed the planners to tell me the cause, or causes, of the delay so that we could take appropriate action.

If the delay was caused by us or was due to something that we were responsible for under the contract, we had to find ways to recover the delay: possibly work longer hours, mobilise additional resources or mitigate delays caused by a supplier or subcontractor.

If the delay was caused by the employer or by something which is considered the employer’s risk under the contract, then we needed to identify this, ensure that the necessary notices were submitted and make preparations to submit a claim.

So, what would I report to the employer’s team in our monthly progress reports under such circumstances? Again…

THE TRUTH.

Burying Heads in the Sand

Many contractors will not agree with this tactic and will be reluctant to tell the employer’s team that the project will be delayed for any reason at all. If the contractor admits to his own delay but explains the steps that he is taking to mitigate, then generally, the employer’s team will accept that delays do happen, and that the contractor is being proactive about dealing with them (or, at least I would). Telling the employers team that the predicted delay is due to something that gives the contractor the right to an extension of time will only support subsequent claims.

This, of course, only works if the contractor is not going to just bury his head in the sand and hope that the delay will go away, which it probably won’t. The contractor must actually take mitigating action to recover his own delays or must ensure that the necessary notices are sent, and a claim is submitted without undue delay.

So, what is the alternative to telling the Employer’s team THE TRUTH? Unfortunately, many contractors manipulate the forecasted parts of the programme so that it no longer predicts a delayed completion date and subsequently avoid giving the employer’s team any bad news.

The fact that this knee-jerk reaction is not sustainable through many progress updates and will not support any legitimate claims for extensions of time seems lost on such contractors.

Fact or fiction? I will leave you to decide the best way.

Hewitt Decipher Partnership’s expert consultants have been helping contractors with efficient contract administration, programming and planning, as well as preparing and responding to claims for many years. We know how to ensure your programmes are prepared and used correctly and properly, so as to preserve any entitlement to extensions of time. Can we help you? Get in touch.


Do you have a $10 head?

I have been a keen motorcyclist for many years and I recently had cause to recall an advertising slogan that Bell Helmets ran during the 1980s. Their powerful message was:

If you have a $10 head, wear a $10 helmet.

Bell helmets were not cheap, but it was no coincidence that a significant number of motorsport competitors could be seen with the Bell logo on their helmets.

How does this relate to the construction industry?

A couple of years ago I was asked to present a training course on procurement for a property developer. Part of my presentation was focussed on the selection of suitable consultants for their projects. I asked the attendees to help me to do some calculations and give me some advice. I don’t remember the exact figures, but the following is a reasonable synopsis of their input:

  • I first asked them to tell me the average total project cost of their projects. Let’s say this was $10,000,000.
  • I then asked what percentage of the total project cost they would budget for consultancy fees. The answer was 10%, which works out at $1,000,000.
  • My next question was, what is the cost difference between engaging the very best consultants and the worst? The reply was that there was maybe a cost difference of 30% between the two extremes.
  • We then worked out that with a $1,000,000 budget for consultancy fees, hiring the cheapest consultants would, on the face of it, save the project $300,000. As a percentage of the total project cost this translates to a 3% ‘saving’.
  • I then asked how consultants were selected and was advised that although the project delivery team carried out pre-qualifications and checked on consultants’ past performance, the services were put out to tender and company policy dictated that the work would invariably be awarded on the basis of the most competitive fees.

I explored a little further into their experience on past projects...

  • Do we agree that the consultants that you engaged are probably the most competitive on price, because they pay lower salaries than the more expensive consultants? Yes.
  • Can we agree then, that the consultants that you appoint are able to pay low salaries, because they employ poorly qualified and experienced personnel? Yes.

Having established the procurement methodology, I asked more questions, this time related to existing projects...

  • Do you ever get design problems which result in additional costs for your projects? Yes, frequently.
  • Do the consultants appointed to supervise, manage and administer the contracts on your projects ever fail in their duties and responsibilities which results in additional costs for your projects? Yes, frequently.
  • Do the consultants appointed to manage and respond to claims on your projects do so in accordance with the contract and in such a way that claims are agreed amicably and in good time? No, we often have contentions with regard to claims.
  • Do disputes arise on any of your projects? Yes, we have had several arbitrations.
  • Are arbitrations costly? Yes, very costly and time-consuming.

And now to the final question I asked the group...

  • Are total project cost budgets ever exceeded? Yes, most of our projects come in considerably over budget.

You Get What You Pay For

The point here is that buying a $10 helmet is probably not a great investment, particularly if something goes wrong and you have an accident on your motorcycle.

The same applies to $10 consultants.

$10 consultants are actually worse. They often cause the ‘accident’ in the first place and will then not protect you properly. Similarly, if you have a commercial matter, contractual problem, claim or dispute of significant value, is it better to engage the best or the cheapest consultants to help you avoid or resolve matters?

Whilst Hewitt Decipher Partnership is not a $10 consultancy, our business model allows us to be very competitive for the high level of expertise that we offer to our clients. Our expert consultants are appropriately qualified and experienced in their particular disciplines, so we provide excellent value for money when assisting our clients. Can we help you? Get in touch.


claims

Success with Claims Arising from COVID-19

This month, I'm going to take the opportunity to blow our own trumpet a little...

And why not?

HDP has worked with a number of clients on extension of time claims connected with COVID-19 recently. Of particular note, we helped clients on two complicated and high-value projects with very high levels of delay penalties. I'm really proud of the way our team managed these projects to achieve successful outcomes and by sharing the details as case studies, I hope it offers some food for thought for managing your own claims...

The Projects

Both projects were EPC contracts undertaken by overseas contractors to engineer, procure and construct industrial plants. Both included many materials and significant quantities of plant and equipment which were manufactured overseas.

In a more conventional extension of time claim, the activities affected by the claimable delay generally only amount to a small number. They may be relatively easily impacted into a suitable programme to demonstrate the effects of the claimable delay on the time for completion. An extension of time claim related to  variation, for example, would require a fragnet to be created to show the instruction, shop drawing preparation and approval, material submission and approval, procurement, delivery and site installation. Other claims may include several delay events with corresponding periods of delay being impacted into a programme. If the logic links are correctly made, the programming software will produce the information necessary to calculate the extension of time due to the event or events.

Not Your Usual EoT Claim

Delays related to COVID-19 were, however, just like COVID-19 itself, very, very different. On the projects in question, COVID-19 delayed literally hundreds of the programmed activities. Overseas manufacture and delivery of many items was delayed because of lockdowns. Travel restrictions meant that our clients could not mobilise personnel for site installation and specialist personnel for testing and commissioning were also unable to travel to the sites. The countries in which the projects were based were placed under lockdown. The sites were closed due to COVID-19 being discovered amongst the project personnel and social distancing in the workplace reduced productivity. In addition to delays incurred by our clients, local subcontractors were similarly affected by many of these matters. This list of delays, all due to COVID-19, went on and on.

Thinking Outside the Box

This unprecedented situation called for us to re-think the conventional approach to extension of time claims, particularly the delay analyses necessary to prove the effect of COVID-19 on the time for completion. The fact that we did so, and did so successfully for our clients, was validated because the claims were accepted by both the Engineer and the Employer and our clients received the required extension of time awards on both projects. What’s more, the claims were not subject to any requests for further particulars and were agreed within a couple of weeks of submission. That's what we call a successful outcome.

Hewitt Decipher Partnership’s expert consultants have been preparing and responding to claims for many years. We know how to think out of the box when required to do so and how to formulate the best strategy for a successful outcome for our clients. Can we help you with COVID-19 related claims? Get in touch.


dispute resolution

Dispute Resolution in the New Normal

The past year has seen radical changes in the way we live our lives,  socialise, work and play. Dispute resolution has been no exception in this regard. Many disputes have been resolved by the means of virtual or online hearings. Parties stay in different locations or their own homes and resolve their disputes remotely.

Before the arrival of COVID-19, there were 10 million people using zoom worldwide. By April 2020, there were 300 million users using the platform. This is great news for Zoom’s shareholders if nothing else (source: unifysquare.com).

HDP’s Head of Contracts and Commercial, Bill Bordill, took part in a discussion on the use of virtual hearings and adapting to the ‘new normal’ in the UK statutory adjudication system. Panellists agreed the pattern has opened up a new way of dealing with disputes. They concurred it is now likely that many more disputes will be resolved this way in future.

Many dispute resolution forums allow for virtual hearings now. These include Abu Dhabi Global Markets, who notably proclaimed themselves as one of the first tech-enabled dispute resolution centres. In London, a similar standard was set by the International Arbitration Centre. The centre focussed heavily on the security systems in place to ensure secure hearings were a feature from their opening. Other forums such as IDRC allow for virtual hearings and the DIFC in Dubai were holding remote hearings in 2017, long before COVID.

In the courts in the UK, the country’s first ‘zoom trial’ was much publicised earlier in the year. Paul Darling OBE QC represented clients in a virtual forum, using the video-conferencing platform, ‘Zoom’. One of the biggest concerns often cited is that parties will not be able to interact with each other as they would in a physical environment. There are fears that parties will not have a fair hearing or be on a fair footing if not in a neutral physical environment. Rules of 'natural justice' have been questioned.

Another concern is that of influence; the worry that in an uncontrolled environment, witnesses may be ‘fed’ answers to questions or influenced in other ways. In a non-COVID scenario, this can be resolved by sending a third, independent party to be with the witness. It is slightly more difficult to control in the current environment.

Nevertheless, Paul Darling noted, “What the trial has proved beyond reasonable doubt, however, is that none of the intimacy of the physical courtroom is in fact lost with a remote trial. Rather, video sharing can in fact heighten our ability to dissect testimony, whilst opening up proceedings to the public.”

Another concern highlighted has been that of security. Zoom in particular, as one of the most popular platforms, has been a victim of security attacks. There have been high-profile issues with the ability of the platform to prevent hackers or others accessing meetings:

https://www.theverge.com/2020/4/3/21207134/zoom-recordings-exposed-thousands-identical-naming-search

https://www.tomsguide.com/uk/news/zoom-security-privacy-woes

Equally, commentators have noted that even a modestly tech-savvy operator ought to be able to remove such risks. They only need enable the relevant settings on the platform, before a hearing begins.

Procedure

Under most systems of Arbitration law, usually there is nothing to preclude you using technology. The Arbitration stays the same, the rules and procedures are the same.

Erik Schafer, one of Germany’s leading arbitrators noted long before the arrival of COVID, on the subject of technology in arbitration: “in the vast majority of cases all participants will collaborate as required”. He notes that this does need a consensual approach - parties need to agree to the process.

Why bother?

Notwithstanding the current virus, there are many reasons to consider remote hearings, in the same way there are many reasons to consider other uses of technology.

  1. The cost should reduce, with no need to hire rooms, provide catering, welfare facilities etc.
  2. There will be no need for travel and accommodation costs and the associated costs of travel time.
  3. The convenience of a remote hearing means it should be possible to arrange the hearing at more convenient times. This should allow those required to attend to plan other activities around the hearing, rather than block full weeks and months of time out of their diaries.
  4. Finally, there is the benefit to the environment. Many air-miles are spent in travelling between arbitrations and projects around the world. By eliminating the extensive need to travel, the carbon footprint of arbitration will reduce.

Practicalities

To allow such a hearing to happen, a key requirement is a stable internet connection. Even the most experienced broadcasters have, at some point in recent months, experienced a lost line or a poor connection. The connection for all users should be strong.

Users of the system should be able to be heard and hear. So, good quality audio, and a microphone separate to the default laptop microphone will be helpful.

A system should be ‘platform agnostic’. Try to avoid systems that favour one manufacturer or another. Microsoft for example, seem to favour their own Windows operating system, allowing only limited functionality on devices not running Windows. The website ‘Capterra’ can be very helpful for businesses trying to identify which platform to use.

System choice should be determined on the functionality and meet security requirements outlined above. Most systems are now able to provide a secure discussion. ‘Zoom’ in particular have been keen to close the various loopholes highlighted earlier in this piece.

The ability of certain platforms to provide breakout rooms has been noted as a particular advantage. Such rooms enable private discussions during a hearing or as directed by a tribunal. Surprisingly few systems seem to offer such functionality, but there are at least two that we are aware of.

Recording and storage should be a consideration when it comes to security. If a hearing or meeting is recorded, where is the data stored, is it secure? As an example, in surveys, Teams comes out well on security, if set up correctly.

Like so many choices in life, it seems choice of platform and whether to conduct a dispute resolution process virtually or not will be a trade-off. The loss of ability to see parties face-to-face is compensated for in other ways. Different platforms offer different strengths and weaknesses. However, it seems that no matter what the future holds, the world has become far more comfortable with working from home. As more money becomes available for research and development, the technology will improve commensurately to help us to do so.

Hewitt Decipher Partnership’s expert consultants have been both managing disputes and acting as experts in dispute resolution proceedings for many years. We have also quickly adapted to managing our services and managing our client’s expectations remotely, wherever the projects and clients may be located.

This article was written by HDP Director, Paul Gibbons. If you'd like to speak to Paul about any help that you require, please get in touch


construction disputes

How Technology can help to avoid Construction Disputes

Construction is lagging behind.

This is not our opinion, but that of renowned research and consultancy organisation, McKinsey & Co. The industry’s productivity rate is lower than most other sectors almost universally around the world. With a few notable exceptions, such as China and India, productivity is poor and growth is slow. For an summary, check out McKinsey’s report Reinventing Construction.

Why is this?

There appear to be a number of reasons - not least our specialist subject, construction disputes. But the challenges posed by the construction dispute are compounded by poor management, poor organisation of data and limited collaboration and communication. Disputes need not occur and if they do, they need be as costly as they are.

We’ve mentioned before, in our 10 Top Tips blog, ARCADIS’ report which highlights the huge cost of disputes. The McKinsey report also notes that large projects are typically 20% over time and 80% over budget. In the US, disputes cost over $12bn each year. In the United Arab Emirates, where construction disputes are notoriously costly, a similar figure would equate to $248,400,000 or more than AED 9M lost each year to dispute resolution.

What Can We Do?

Adoption of technology and improvements in innovation and communication would be a positive first step. It may surprise some readers to find that at Hewitt Decipher Partnership, we don’t want to spend excessive amounts of time resolving disputes. It isn’t productive and doesn’t make for happy clients. If you do find yourself in a dispute, it is far better to be in a good position to resolve that dispute and minimise the cost, than to have to spend more than is necessary.

Technology

There are a number of systems available, but hitherto, a lot have been focussed on one aspect of construction or geared towards solving one problem. For example, Oracle’s primavera provides a great project planning tool with potential for planning in resources and cost, but rarely is it used collaboratively or pro-actively during the project.

There are tools for managing documentation and site records. Software is available for design and safety management. Rarely though, do all the stakeholders come together and invest in a coordinated fashion in the right software for the job.

Investing in technology is important. Records, plans and schedules, design documents and anything that might affect progress should all be coordinated. Whilst this article does not seek to recommend a particular software over another, there is useful research material out there. For example, this article from venture capital investors, Talis, looks at products which have the potential to create change in our sector. There are events, such as ‘project controls expo’, ’futurebuild’ and ‘glimpse of the future’. Each seeks to showcase innovators and technology providers in construction technology, “ConTech”.

Other Innovations

There are a host of other innovations we have seen in recent years. The use of virtual reality to re-create construction projects, the use of 4D modelling to identify where and how site instructions and variations led to a change in programming and cost, drones for surveying - to name just a few. As time progresses and technology is adopted, it is likely that the cost of dispute resolution will reduce. Our aim at Hewitt Decipher Partnership is to harness that technology and minimise costs to our clients.

If you have already sought to harness technology organise data before you need us, our job is likely to be easier and less time consuming. The result will be a less costly and more efficiently resolved dispute. We urge clients to seek out technologies to better manage records, improve communication between stakeholders and reduce the potential cost of construction disputes.

Hewitt Decipher Partnership’s expert consultants have been supporting clients though dispute proceedings for many years. We know how to comply with good practice to minimise dispute and if they do occur, ensure that they are resolved in a timely and cost-effective manner. Can we help you? To find out how, get in touch.


FIDIC 1999 Notices - Andy Hewitt's Latest Book

At the end of 2019 I was working with a contractor-client on several extension of time and additional cost claims and, as is necessary in any claim, I needed to demonstrate that the contractor had complied with the contractual notice provisions.

This client had sent some notices. In most cases though, these didn't comply with the contract requirements and in many cases they were completely meaningless as notices.

The Proposed Solution

It was clear that those responsible for contract administration on the projects were unclear about what a notice should contain and how it should be composed. I suggested to our client that it would be a good idea for me to prepare drafts of the most common notices so that their contract administrators would have a starting place when composing notices on their projects. Our client liked the idea and agreed. A couple of weeks later, a Notice Manual was distributed to all the projects.

An Idea Was Born

It then occurred to me that this client isn’t alone in their lack of understanding of notice provisions of FIDIC. During my considerable time working as a claims consultant I have noticed that failure to provide notices in the correct format is one of the biggest mistakes made by the parties and those appointed to administer a FIDIC contract.

And that was the lightbulb moment.

I decided to write a book on the subject: FIDIC 1999 Notices: A Guide to the Requirements Content and Composition of Notices Under the Red, Yellow and Silver Books.

The book examines each clause of the FIDIC Red, Yellow and Silver forms of contract that require notices to be given by the Contractor, the Employer and the Engineer. It contains explanations of why, and under what circumstances, each notice is required and provides real-world, written examples of typical notices for each clause.

This is what Dr. Cyril Chern, (Barrister, Chartered Architect, Chartered Arbitrator, Adjudicator, Accredited Mediator, Dispute Board Expert) had to say about it in the foreword:

FIDIC contracts are the basis for most of the world’s major infrastructure projects and also for most of the litigation that arises from these projects. For example, a typical FIDIC notice provision states that notice must be given within 28 days of any event the result of which is that the date for completion ‘is or will be delayed’. What does this mean? What is the notice to look like and what is it to say? And this is where the problem starts.

In my role as both an adjudicator and arbitrator of FIDIC matters, what is most common is the lack of proper notice, timely notice, and intelligent notice but nowhere does FIDIC set out how these are to look and what they are to contain. There are no exact standards to guide the Contractor (nor the Employer or Engineer) and as a result, large amounts of time and money are lost in litigating these issues after the fact, rather than having clear standards to rely upon and prevent problems in the first place.

FIDIC 1999 Notices: A Guide to the Requirements, Content and Composition of Notices Under the Red, Yellow and Silver Books by Andy Hewitt provides both the Contractor and Employer/Engineer as well as their advisors with the needed information and clarity for each of the steps in the construction process under FIDIC contracts (1999 versions) and generally and most importantly doesn’t just ‘talk’ about the issue but gives actual examples which can be used and/or modified for use on any FIDIC project worldwide for maximum benefit.

The book covers first the administration of notices and what is involved and then moves into the necessary Contractor’s notices which form the bulk of claims seen both in a dispute board setting as well as in arbitration—was notice given, what did the notice contain, was it sufficient, why yes and/or why not, and all the needed information for every situation and for every sub-clause of the standard FIDIC contract. Then it delves into the Notices required by both the Employer and its Engineer, thus covering all aspects of any project.

This is a ‘must-have’ and ‘go-to’ book for any Contractor, solicitor, barrister, Engineer and Employer who uses FIDIC contracts, and its information will save time and money for all those who use it. I highly recommend this book.’

If this sounds like something that might be helpful to you or your company, get your copy from Amazon UK or Amazon.com.

Hewitt Decipher Partnership’s expert consultants have been preparing and responding to claims for many years. We know how to comply with good practice to ensure that you do not lose your entitlement and if you have entitlement, to ensure that your claims are accepted. Can we help you? To find out how, get in touch.


delay analysis

Get your Delay Analysis Accepted | 8 Tips for Success

Over the past couple of weeks we have been asked by two separate clients to review responses that they've received where their claims have been rejected. Whilst in both cases, the respondents cited several reasons for rejection, some valid and some not, both cited the method of delay analysis submitted with the claims as a cause for rejection. In my experience, this ranks as one of the most frequently used reasons for the rejection of claims.

Case 1

In the first case, the contractor had simply taken a number of what he considered to be critical activities and established the number of claimable delay days to these activities. He then added the highest number of delay days to the prevailing Time for Completion and requested an extension of time to the resultant date.

I can absolutely guarantee that no respondent will award an extension of time on this basis and that includes myself if I were acting on behalf of the client. I would need to see the effect of the employer-risk events on the latest programme using the existing logic, I would need to check that existing contractor delays had been considered and if a cost claim was involved, I would need to verify that there was no concurrent delay.

Case 2

The second case was different. The contractor had produced a good delay analysis using one of the recommended methods, but the Engineer had rejected it, simply on the basis that he wanted a different method of delay analysis and, I suspect, because he did not understand the analysis itself. This is very common because it allows those acting on behalf of the respondent to defer putting their necks on the line and making a decision which could result in an award to the claimant.

The problem here was caused entirely by the claimant, because he did not justify the use of the chosen method of delay analysis, he did not explain how it had been performed or  demonstrate the effect on the prevailing time for completion. Had he done so, this would have closed the door on the respondent using the delay analysis as a reason for rejection.

Delay Analysis: 8 Tips for Success

Our 8 top tips for successful delay analyses are:

  1. Ensure that you use an appropriate method of delay analysis for the project, the nature of the delays and the information that is available
  2. Justify that the chosen method is appropriate for the circumstances
  3. Use an appropriate programme as a basis of the delay analysis and explain why and how it has been used
  4. Perform the delay analysis in accordance with established procedures and to an appropriate professional standard
  5. If logic errors in the base programme are discovered, correct them and explain why and how they have been corrected
  6. Explain in the claim narrative exactly how the analysis has been performed in such a way that a non-expert programmer can understand it
  7. Explain the findings of the delay analysis
  8. Use the findings to properly calculate the extension of time that you are claiming and explain the calculations clearly.

Keep these tips in mind and you'll be submitting with success each and every time.

Hewitt Decipher Partnership’s expert consultants have been preparing and responding to delay analyses for many years. We know how to comply with good practice to ensure that you have a robust delay analysis to support a claim and, if working on the employer’s side of the fence, we know the standards that the claimant must meet to justify an award.

Can we help you? Get in touch via our contact page; we would be happy to discuss any support that you may need. Want our article straight in your inbox, sign up to our mailing list.


interim claims

Interim Claims and COVID-19: should we wait, or should we submit?

Unsurprisingly, we are currently advising several clients on matters related to COVID-19 and the topic of interim claims frequently comes up. One of the questions we are asked is ‘Should we wait until the delays arising from COVID-19 have ended before we submit our claims?’.

Our answerer is an emphatic...NO!

Most contracts oblige the claimant to submit claims within a specified time period and if the final effects cannot be ascertained, to submit interim claims until the delays have ended and the final effect on the time for completion and/or the costs may be calculated. Using FIDIC 1999 as an example, Sub-Clause 20.1 (Contractor’s Claims) states that:

‘Within 42 days after the Contractor became aware …the Contractor shall send to the Engineer a fully detailed …. If the event or circumstance giving rise to the claim has a continuing effect:

‘(a)    this fully detailed claim shall be considered as interim;

‘(b)    the Contractor shall send further interim claims at monthly intervals, giving the accumulated delay and/or amount claimed, and such further particulars as the Engineer may reasonably require; and

‘(c)    the Contractor shall send a final claim within 28 days after the end of the effects resulting from the event or circumstance, or within such other period as may be proposed by the Contractor and approved by the Engineer.

This is stipulated to ensure that the Employer and Engineer are aware of the likely effects on a regular basis and make plans for a late handover and/or provisions for additional financial requirements. If the contractor does not fulfil these obligations they won't be able to do either.

From a practical point of view, the longer a claimant leaves a claim, the more difficult it will be to agree – circumstances change, people leave the project, consultants are demobilised and of course, if the Employer has been presented with a completed project, his incentive to settle claims is considerably reduced.

Some contractors believe that the submittal of several updates will be time-consuming and costly, but this is only partly true. The time-consuming and difficult work is required for the first interim submission because this is where the majority of the investigations, data gathering, setting up of the delay analysis programmes and examination and demonstration of cause, effect and entitlement takes place. This, of course, is necessary whether the claim is being prepared on an interim or a final basis. Once the base document and calculations have been created though, the updates are reasonably straight-forward and do not require nearly as much time and effort as the first submission.

Some contractors are reluctant to put the effort into preparing adequately expressed claims or incur costs in doing so and keep deferring a decision on what action to take. Some of these contractors may also be facing delay penalties running into millions of dollars, so putting contractual obligations aside, does it make any financial sense at all to defer securing an extension of time until later? We think not.

Hewitt Decipher Partnership’s expert consultants have been preparing and responding to claims for many years. We know how to comply with good practice to ensure that our clients have a justifiable claim that is adequately expressed. Therefore, if entitlement to an extension of time exists, the claims will be accepted in a timely manner and delay penalties will be negated.

Can we help you? Get in touch via our contact page; we would be happy to discuss any support that you may need. Want our article straight in your inbox, sign up to our mailing list.