Records
Contemporary Records to Substantiate the Claim (Clause 20.1 paragraph 4) - Must be agreed and signed off and can include the following;

• Letters - Formal, Site Notes, E mails (60% plus of all communications are via informal uncontrolled unshared email)
• Meeting Minutes
• Progress Reports
• Daily Diaries
• Labour Returns
• Sub-Contract Records
• Special Records

Techniques to turn information into knowledge:

• Chronologies of events
• Cause and Effect Matrix
• Retrospective Delay Analysis

Showing the link between Cause and Effect:

• Concurrent Delays  1) Dominant Cause 2) Malmaison Approach
• Float

Heads of Claims

• Extension of Time
• Indirect Costs - Cost or Cost plus Profit
• Direct costs - Cost or Cost Plus Profit
• Head office overheads
  
• Acceleration costs 1) Instructed 2) Constructive Acceleration 3) Agreed
  
• Disruption costs
• Variation and change
  
• Loss of Profit
  
• Interest
  
• Consultant Cost
  
• Claim formulation costs

Clause 20.2 - Appointment of the Dispute Adjudication Board
“Disputes shall be adjudicated by a DAB in accordance with Sub Clause 20.4 Obtaining Dispute Adjudication Board’s Decision ]. The Parties shall jointly appoint a DAB by the date stated in the Appendix to Tender. The DAB shall comprise, as stated in the Appendix to Tender, either one or three suitably qualified persons (“the members’). If the number is not so stated and the Parties do not agree otherwise, the DAB shall comprise three persons

Clause 20.4 Obtaining Dispute Adjudication Board’s Decision

• The DAB will give it’s decision within 84 days after receiving such reference or any such period proposed by the DAB
• The decision will be reasoned and shall state that it is given under this Sub Clause.
• The decision will be binding on both Parties who shall give prompt effect, unless and until it is revised in an amicable settlement or an arbitral award as described below.
• Unless the contract has been abandoned, repudiated or terminated, the Contractor will continue to proceed with the Works in accordance with the Contract.
• If either party is dissatisfied with the DAB’s decision, then 28 days after receiving the decision, either party can give notice to the other party of its dissatisfaction
• If the DAB doesn’t give it’s decision within the 84 days (or as otherwise approved), after receiving the reference, either Party can within 28 days after the period has expired, give notice to the other party of it’s dissatisfaction.
• This notice of dissatisfaction shall state that it is given under this Sub Clause, and will set out the matter in dispute and the reason/s for dissatisfaction.
• Except as stated in Sub Clause 20.7 [ Failure to Comply with Dispute Adjudication Board’s Decision ] and Sub Clause 20.8 Expiry of Dispute Adjudication Board’s Appointment ], neither Party can commence arbitration of a dispute unless a notice of dissatisfaction has been given in accordance with this Sub Clause.
• If the DAB has given it’s decision to both parties, and no notice of dissatisfaction has been given by either Party within 28 days after they received the decision, then the decision becomes final and binding on both Parties

Clause 20.5 Amicable Settlement
“Where notice of dissatisfaction has been given under Sub Clause 20.4 above, both Parties shall attempt to settle the dispute amicably before the commencement of arbitration. However, unless both Parties agree otherwise, arbitration may be commenced on or after the fifty sixth day after the day on which notice of dissatisfaction was given, even if no
attempt at amicable settlement has been made.”

Clause 20.6 Arbitration
“Unless settled amicably, any dispute in respect of which the DAB’s decision (if any) has not become final and binding shall be finally settled by international arbitration. Unless otherwise agreed by both Parties:

• The dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce,
• “The dispute shall be settled by three arbitrators appointed in accordance with these Rules, and
  
• The arbitration shall be conducted in the language for communications defined in Sub Clause 1.4 [ Law and Language
  

The arbitrator(s) shall have full power to open up, review and revise any certificate, determination, instruction, opinion or valuation of the Engineer, and any decision of the DAB, relevant to the dispute. Nothing shall disqualify the Engineer from being called as a witness and giving evidence before the arbitrator(s) on any matter whatsoever relevant to the dispute.

Neither Party shall be limited in the proceedings before the arbitrator(s) to the evidence or arguments previously put before the DAB to obtain its decision, or to the reasons for dissatisfaction given in its notice of dissatisfaction. Any decision of the DAB shall be admissible in evidence in the arbitration.

Arbitration may be commenced prior to or after completion of the Works. The obligations of the Parties, the Engineer and the DAB shall not be altered by reason of any arbitration being conducted during the progress of the Works.”

Clause 20.8 - If there is no DAB in place at the time a dispute arises the dispute may be referred directly to arbitration and the provisions regarding the DAB and amicable settlement will not apply

eating proposed four solutions to apportion the loss:

• The tortious solution
• The burden of proof approach
• The Devlin approach: (See: Heskle v. Continental Express Ltd [1950] 1 All E.R. 1033 at p. 1048 per Devlin J)
• The dominant cause approach: (Ref Gallo Ltd v Bright Graham Murray [1994] 1 W.L.R 1360 (C.A.))

SOCIETY OF CONSTRUCTION LAW DELAY AND DISRUPTION PROTOCOL:
1.4.4 True ‘concurrent delay’ is the occurrence of two or more delay events at the same time, one an Employer Risk Event, the other, a Contractor Risk Event , and the effects of which are felt at the same time.  True concurrent delay will be a rare occurrence.

What happens if the Contractor is prevented from completing on time, there is a remedy in the contract for the Employer’s default but the Contractor is time barred from relying on the remedy? (Refer FIDIC Clause 8.6)

Dominant Cause: Problems

• How to decide which delay is dominant
• Calls for relaxation of the “but for” test
• Conflicts with prevention principle

The Malmaison approach
The approach to concurrent delay which is now commonly referred to as ‘the Malmaison approach’ was summarised by Mr Justice Dyson (as he then was) in the Malmaison case. The passage in question reflected an agreement between counsel appearing before him.

• Avoids prevention principle issues
• Relaxation of But For test

This is necessary to avoid conflict with the express intention of the parties. Avoids the obverse problem. In the City Inn Case Lord Drummond Young made clear that he contemplated that precisely the same approach should be taken in
apportioning both time and loss. Wording which clearly prescribes apportionment of either time or money is noticeable by it’s absence in our contracts. Difficulty with the apportionment approach concerns the prevention principle. 

In City Inn Lord Drummond Young said:
‘I agree that it may be possible to show that either a relevant event or a contractor’s risk event is the dominant cause of that delay. A similar principle was recognised in Doyle, at paragraph 15 of the opinion of the court; the principle is derived from the older case of Leyland Shipping Company Ltd v Norwich Union Fire Insurance Society Ltd [1918] AC 350’.

Caution: This should not be read as an unequivocal support for the dominant cause regard has to be paid to the facts.
Note: However, the dominant cause approach has received support in recent years from the decision at first instance in City Inn.

The collapsed as-built or but-for analysis method
This method should have the benefit of working from the full factual matrix. In order for it to work, the host schedule for the analysis should be a detailed and accurate as built schedule. The as built method has no programming logic, that is where activity relationships are linked. The method is based on the facts but the conclusion generated by the analysis is a hypothesis and not a fact. Once the result is generated, being the hypothesis, one must now spend time reviewing the hypothesis.

As-planned versus as-built windows analysis method:
This method is “retrospective” and “static”. The focus of the as-planned method is to establish the incidence, extent and causes of actual delay to completion and operates on the principle that actual delay to completion must by definition be found on the actual critical path of the project. The as-planned method therefore seeks to first locate and identify the project’s actual critical path, and only then the causes of delay.

The Impacted as-planned method:
This method of assessing a delay is to establish the hypothetical impact of the delay events on the baseline schedule. It is a “prospective” analysis method which means that it refers to the future and seeks to determine the likely impact of a particular event(s) on project completion. The contractor superimposes the delay events into the baseline schedule, links them in an appropriate manner and recalculates the schedule. The resultant impact of the events shown on the completion date is then said to be the critical delay impact.

The time impact analysis method:
This method of analysing a delay is recommended by the Society of Construction Law Delay and Disruption Protocol.
The “networked” baseline schedule is first updated with progress to a point in time just before the delay event arose.
This means that it takes account of the effect of progress and timing of delay events on the works.

Clause No: 4.7 Setting-Out
Event - Error in specified reference points (not reasonably discoverable by experienced Contractor)
Notice - 8.4 & 20.1(28 Days)
Claimable - Cost + Profit

Clause No: 4.12 Unforeseeable Physical Conditions
Event - Adverse unforeseeable physical conditions & subsequent delay
Notice - As soon as practicable 4.12 & if delayed + 8.4 & 20.1(28 Days)
Claimable - Cost

Clause No: 4.24 Fossils
Event - Notice of discovery and subsequent delay resulting from Compliance with Instructions
Notice - Promptly 4.24 & if delayed 8.4 +20.1(28 Days)
Claimable - Cost

Clause No: 7.4 Testing
Event - Instruction for additional passed test, or delay for which Employer responsible
Notice - 8.4 & 20.1(28 Days)
Claimable - Cost + Profit

Clause No: 8.4 Extension of time for Completion
Event - Various
Notice - 8.4 &20.1(28 Days)
Claimable - Time

Clause No: 13.2 Value Engineering
Event - Approved proposal reduces contract value
Notice - Engineer to carry out 3.5 determination
Claimable - 50% of net saving

Clause No: 13.3 Variation Procedure
Event - Proposal to be submitted Variation to be evaluated per clause 12
Notice - 13.2 Value Engineering+ Proposal under 8.3 & 13.3 + valuation under Cl12 
Claimable - V.O.

Clause No: 13.7 Adjustments or Changes in Legislation
Event - Delay/cost from Change in law
Notice - 8.4 + 20.1 notice (within 28 days)
Claimable - Cost

Clause No: 15.5 Employer’s Entitlement to Termination
Event - Employer terminates at will
Notice - 16.3/19.6
Claimable - Value of work + cost

Clause No: 16.1 Contractor’s Entitlement to Suspend Work
Event - Contractor suspends due to Employer’s default
Notice - 21 days prior notice to suspend Cl 16.1 + 8.4 & 20.1 (within 28 days) if loss or delay incurred 
Claimable - Cost + Profit

Clause No: 16.2 Termination by contractor
Event - Contractor terminates due to Employer’s default
Notice - 16.2 notice 14 days prior (or immediate in some circumstances)
Claimable - Release of bond, value + cost, profit, loss and damage

Clause No: 16.4 Payment on Termination
Event - Contractor terminates due to Employer’s default
Notice - Payment due promptly after termination notice has taken effect. (or immediate)
Claimable - Release of bond, value + cost, profit, loss and damage

Clause No: 17.4 Consequences of Employer’s Risks
Event - Loss or damage to Works etc. due to Employer’s risk
Notice - Promptly give 17.4 notice, and if delay / loss then 8.4 & 20.1 Within 28 days 
Claimable - Cost (+ profit in two instances)

Clause No: 19.2 Force Majeure
Event - Prevented from performing any obligation
Notice - 19.2 notice (Within 14 days)
Claimable - Cost (except natural catastrophes)

Clause No: 19.4 Consequences of Force Majeure
Event - Prevented from performing any obligation
Notice - 19.4 notice of FM and 8.4/20.1 notice (Within 28 days) 
Claimable - Cost (except natural catastrophes)

Clause No: 19.6 Optional Termination, Payment and Release
Event - Termination after 84 days Prolonged prevention
Notice - 7 days’ notice 19.6
Claimable - Value + Cost

Clause No: 19.7 Release from Performance under the Law
Event - Impossible, unlawful or released by law
Notice - “Upon notice”
Claimable - Value + Cost

Clause 20.1 Contractor’s claims
Event - Contractor considers himself entitled to EOT or extra payment
Notice - 28 days (42 days for fully detailed claim)

The basic and most important Construction tool used to determine Project Profitability is the Cost Reporting process. This guideline will explain the concept of Cost Reporting, understanding the template and the associated software packages. Most software packages today are unable to provide a true cost vs value comparison and thus the need to have a customised Excel template to make the necessary adjustments is extremely important. Most major Contractors today apply this approach. ​

When we look at this concept the most important part of a cost report is the “Cost versus Allowable Report”.  The report is designed around the interface between the Allowable grouped into Group Codes (Value) vs the Costs according to cost code allocations applied in the Accounts costing system. This template should be divided into two main sections, namely, VALUE and COST, which enables the Quantity Surveyor to show the measured value to date (allowables) broken down into the respective cost codes for labour and materials, for comparison with the actual costs to date.  There should also be columns that reflect the monthly variances in allowable (Cost vs Value Reconciliation).  The document should indicate the total tender allowable for the Contract and the current budget forecast of gains and losses on the 'Forecast Allowable sheet'. For a copy of our free monthly cost reporting concept guideline, click on the link below...

he importance of preparing an adequate geotechnical report cannot be overstressed. The information contained in this report is referred to often during the design period, construction period, and frequently after completion of the project (resolving claims). Therefore, the report should be as clear, concise, and accurate.

Both an adequate site investigation and a comprehensive geotechnical report are necessary to construct a safe, cost-effective project. Engineers need these reports to conduct an adequate review of geotechnical related features, e.g., earthwork and foundations. The Consultant should prepare “Preliminary” geotechnical reports for submittal to the design team whenever this information will benefit the design process. Early submittal of geotechnical information and recommendations or engineering evaluation of preliminary data may be necessary to establish basic design concepts or design criteria. This is commonly the case on large projects or projects containing complex or difficult geotechnical problems where alignment and/or grade changes may be appropriate based on geotechnical recommendations.

The development of a “Final” geotechnical report will not normally be completed until design has progressed to the point where specific recommendations can be made for all of the geotechnical aspects of the work. Final alignment, grade, and geometry will usually have been selected prior to issuance of the final geotechnical report. While the geotechnical report content and format will vary by project size and highway agency, all geotechnical reports should contain certain basic essential information, including:

• Summary of all subsurface exploration data, including subsurface soil profile, exploration logs, laboratory or in situ test results, and ground water information;
• Interpretation and analysis of the subsurface data;
• Specific engineering recommendations for design;
• Discussion of conditions for solution of anticipated problems; and
• Recommended geotechnical special provisions.

The more detailed the report, the better, as engineers, clients and prospective contractors all require this information make the required calculations or assumptions in execution.

Here is a sample Geotechnical Report Outline;

But even these businesses if asked will complain of not getting everything done or having not provided / recorded enough information. Information is everything in construction. It records the success of the project, details the failures, provides vital information for tendering and most importantly reduces risk in the event of a delay claim for time or loss and expense claim where detailed particulars are required.
 
As if building isn’t stressful enough working with tradesmen, labourers, which take the best out of any manager one still have to make money on your fixed tender price. It is tough all right. Plus being one of the oldest professions of mankind’s existence it places an inherently strong contractual obligation on a contractor ensuring the client is protected from fly by nights and ensuring they are buying what parties signed up to.
 
So how does successful business’s get all of this done and still have time to go and play golf on a Wednesday afternoon? They all have one thing in common…their controls are in place which ensures that all their obligations are met. These controls could be maintained by one of the following resources;

• Managers, employees
• Software
• Audit platforms
• Company Procedures
• Template documents
   
  Now all of these come at a price and a product that combines all of the above would be perfect, but face it very few companies if any can provide such a solution. Furthermore most of the construction industry contractors have created and moulded their own controls through trial and error and years of experience. These proven controls and documents would be invaluable to any contractor, but it is difficult to obtain and in most cases restricted to intellectual property.
   
  Civiltemplates.com provides such a service and is offering specific document templates used by Contractors Globally. These proven template documents are now made available on this online template store.
   
  The following document template categories are available for download.
  
  
• Project Management (48 Templates)
• Planning & Scheduling (33 Templates)
• Procurement (38 Templates)
• Geotechnical Investigation (22 Templates)
• Quality Control (38 Templates)
• Health & Safety (Coming soon)
• Cost Control (Coming soon)
  
  

These templates provides a logical solution in creating such controls for any contractor and should be considered if you are in a situation where new controls are required.

HOOH is generally described as company costs incurred by the contractor for the benefit of all projects in progress. This is the actual cost, which is an essential part of the cost of doing business.1 These are costs that cannot be directly allocated to a project. This definition excludes those costs incurred by the contractor solely in support of a single project or group of projects.

The landmark case in the area of Head office Overhead recovery (HOOH) is the Eichleay Corporation case decided in 1960. Where there were multiple work stoppages for which the client was responsible. It was concluded that HOOH costs continued during the suspension periods; that the Eichleay Corporation was unable to take on new work during these periods to replace lost project revenue and thus, had to absorb the unrecoverable HOOH costs.
The formula for compensation requires three steps:

1) find assigned contract overhead, multiply the total overhead cost incurred during the contract period times the ratio of billings from the delayed contract to total billings of the firm during the contract period;
2) to get the daily contract overhead rate, divide assigned contract overhead by days of contract performance;and
3) to get the amount recoverable, multiply the daily contract overhead rate times days of government-caused delay.

FORMULA
Contract Billings
Total Billings during period of performance x Total Overhead (General and Administrative Expense) during period of contract performance = Overhead allocated to Contract
Allocated Overhead
Days of Performance = Daily Contract Overhead 
Daily Contract Overhead x days of delay = Claim Amount

Example
Contract Notice to Proceed - November 1, 1986 
Contract Completion Date - November 1, 1987 
Performance Time - 365 days 
Actual Completion Date - December 1, 1987 
Days of Delay - 30 days 
Contract Billings (Amount plus change orders) - $1,000,000 
Contract Billings for Company 11/1/1986 to 12/1/87 - $2,000,000 
Overhead (General and Administrative Expenses) 11/1/1986 to 12/1/1987 - $400,000

Calculation
$1,000,000 x $400,000 = $200,000 
$2,000,000 
$2,000,000/395 days = $506.33/day 
$506.33 x 30 days = $15,189.90

A detailed template is available at the link below.

http://www.Online-Templatestore.com our partner site has over 400 document templates available for download, including the Eichleay formula and various other claim assisting documents.

The importance of this simple yet crucial signature / process marking on documents cannot be more emphasised. Stamping of all business documents according to key processes is essential and have a significance in terms of validity and assurance in information control. The power of these stamps on received or processed documents has been proved time and again and can become key evidence during dispute resolution and law cases. These stamps can either be procured off the shelf from any stationary agency or be specifically designed and company branded at a small cost. Herewith listed some important stamps that is used daily in most businesses.

The received stamp is an excellent way of monitoring when paperwork has come into the office. Design a branded rubber stamp for all incoming correspondence, drawings and communication that is stamped by the company / project secretary at a centralized location. It is also useful that the stamps reflect the time (time is money after all) as it becomes quite useful when resolving conflicting correspondence and dispute resolution.

The distribution stamp is good method for a Project Manager to briefly review incoming correspondence and immediately assign the action or copy to his relevant team members (by ticking the applicable box next to their initials). Once stamped and marked the secretary is responsible for the distribution and filing thereof. This way the PM has control of all information and certain the correct communication flow is applied without time being wasted. In addition all distributed correspondence actions can later easily be tracked, followed or discussed with the accountable team member.