Driver Trett Digest | Issue 20 - Magazine - Page 28
DIGEST | ISSUE 20
The contrast
of the Notice by the Engineer).
iv. A fully detailed Claim, as stipulated by Sub-clause
20.2.4, must be submitted within 84 days after the
Party became aware, or should have become aware, of
the event or circumstance. Alhough, there is provision
for this to be revised if proposed by the claiming Party
and agreed by the Engineer. This document would also
include the claiming Party’s justification that its Notice
was correct and should stand in the event that it had
been rejected by the Engineer.
v. If the claiming Party does not submit, as a minimum,
a statement of the contractual and/or legal basis of
the Claim within the 84 day period (or as agreed to be
amended by the Engineer) the Notice of Claim shall be
deemed to have lapsed and no longer be valid and the
Engineer shall, within 14 days of the time limit expiring,
give notice to the claiming Party accordingly. Failure by
the Engineer to issue such a Notice will mean that the
Notice of Claim remains valid.
As is evident from the analysis of the provisions
for dealing with claims, as set out within the 1999
Conditions as compared to the 2017 Conditions,
there appears to be more stringent and time-specific
procedures within the latter.
In particular, it is noteworthy that:
The 2017 Conditions allows significantly more time
for a Contractor to provide a fully particularised
Claim. This additional time ought to allow the
Contractor to produce better quality Claims which
hopefully will assist the Parties to understand and
resolve matters.
There is an emphasis upon the Contractor providing
proper explanation of the contractual and/or legal
basis of its Claim.
The Engineer is obliged to consider the merits of
the Claim at an earlier stage in the process (i.e.
upon receipt of the Notice and not the first Claim
submission).
The deemed acceptance provisions ought to ensure
that the Engineer issues a response timeously.
The procedures for consultation and determination
have fixed timescales and therefore cannot be
open-ended. The deemed rejected provisions for
failure to adhere to the time limits at least bring
a closure to this part of the process to allow the
Contractor to instigate the Dispute procedures.
Unlike the 1999 Conditions, the 2017 edition
expresses that the Engineer should act neutrally
when determining Claims. This could make a big
difference in allowing more objective analysis of
Contractor’s Claims.
vi. In the event that the first claim is interim (i.e. the
effects of the event are ongoing beyond 84 days), the
claiming Party is obliged to send further interim Claims
at monthly intervals. The Engineer is required to give
his/her response on the contractual and/or legal basis
of the Claim within 42 days of receipt of an interim
Claim and in the event that the Engineer fails to do so,
the Engineer is deemed to have rejected the Claim.
vii. A final Claim is required to be submitted within 28
days of the end of the effects resulting from the event.
viii. Upon receipt of the final Claim, the Engineer is
obliged to consult with both Parties and encourage
discussion between the Parties in an endeavour to
reach an agreement. There is a stipulated period of 42
days for agreement to be achieved, though this can be
amended if proposed by the Engineer and agreed by
the Parties.
ix. If agreement is not reached within 42 days, the
Engineer is obliged to issue a fair determination of the
matter within 42 days after expiration of the period for
reaching agreement.
x. Failure of the Engineer to adhere to these time limits
means that the Engineer is deemed to have given a
determination rejecting the Claim.
xi. The Engineer is expressly stated to carry out his
duties of consultation and determination neutrally
between the Parties and shall not be deemed to act for
the Employer.
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In-keeping with the intention to make the 2017
Conditions more focused upon dispute avoidance, it is
my opinion that the key differences outlined above will
go some way towards achieving this aim, particularly in
respect of Contractor’s claims. The greater emphasis
that is placed upon dealing with claims in a timeous
manner should (hopefully) avoid the past feelings that
often Contractor’s Claims are not dealt with expediently.
As with all matters of contract management and
administration, the contract conditions can only provide
the parties with the framework to deliver upon such
objectives. The responsibility to make it work remains
with those involved in the process.
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