Negotiating a construction variation claim – read this first to improve your success

Most of us have at some time submitted variation claims to our customers for changes encountered during the course of the project. Some are for extra costs only, while others are the extension of time claims which usually also result in additional costs. On some projects, these claims are worth millions of dollars.

It’s essential that you submit a well thought through and substantiated variation claim. However, even if your claim is well presented and includes all the facts, clients usually require a meeting to discuss your claim. They often have questions, dispute your facts and calculations, or just believe that contractors automatically inflate their claims and it’s, therefore, their right to negotiate the claim down to a smaller value. Sometimes they don’t understand the claim. In fact meeting with the client soon after the claim is submitted enables you to answer questions and explain the basis of the claim before the client’s team has made a firm decision regarding your variation claim. Once a claim is formally rejected it can be difficult to reverse the decision. Often egos come into play and people don’t want to be seen to lose face by backing down.

These claim meetings are important because they can secure extension of time and variation claims which can be worth millions of dollars. Failure to resolve these claims can see them drag out for months and even years – often costing huge amounts of time and money. They can become bitter disputes, souring the relationship with your client and even damaging the project. As long as these variations aren’t settled your company is probably not being paid the claim, which can be detrimental to your company’s cash flow and possibly put your company’s future in jeopardy. You need to settle variation claims as amicably and as quickly as possible, ensuring you win what’s due to your company.

Face to face meetings with your client and their team is often useful to shortcut the claims process, giving you an opportunity to answer their questions and understand their concerns. Unfortunately, many contractors go into these meetings ill-prepared, or with an attitude spoiling for a fight.

Here are a few tips to help you win your variation claims.

Before the meeting:

1. Read through the variation claim to refresh your memory.
2. Ensure you take a colleague with, to back you up.
3. Explain the claim to the other person and ensure you both understand why there is a claim and how the costs or time for the claim were calculated. You don’t want to be contradicting each other in the meeting or have your colleague accept a lesser figure than you want.
4. Understand the strengths and weaknesses of your claim. Be ready to support the strengths and to defend the weak points.
5. Take all the relevant documents, ensuring they are filed in the correct order and where supporting documents can be easily found.
6. Know what the ‘fall-back’ position or minimum is that you require. You won’t always be granted what you would like or what you have asked for.
7. If you know some of the concerns or arguments that your client might have, then go prepared with counterarguments.
8. Know your contract document and your rights.

During the meeting:

1. Be patient. Explain the basis of the claim clearly, logically and concisely. Present supporting documentation to support your words.
2. Don’t assume the other party is familiar with the facts of the case. Explain it all.
3. Stay calm. Keep emotions out of the argument
4. Listen to what the other side has to say.
5. Understand the other party’s arguments and use facts and the contract to explain why they are incorrect. Take the time to go through every argument even when you consider them annoying, irrelevant or trivial.
6. Understand the other party’s fears or concerns and address these pointing out why the fears are unnecessary and presenting arguments to allay their concerns.
7. Admit when you are wrong. It’s pointless arguing over something when you are wrong. It costs you the moral high ground and you lose integrity.
8. Be prepared to grant small wins. Always keep your eye on the big picture.
9. Take notes during the meeting, particularly of questions that need to be answered and points that were agreed.
10. Don’t be swayed by emotional arguments. Don’t be intimidated by bullying tactics. There should be nothing personal about presenting a variation claim. The contract is the contract and the facts are the facts and everyone must abide by the contract rules.
11. Don’t make threats or promises you can’t keep.
12. Don’t make rushed decisions. If necessary take a break to compare notes with your colleagues, rework calculations, and carefully consider options. However, when things are going well and the client is conceding points then keep the conversation moving quickly to a final agreement, even if this means making some small concessions.
13. Learn when to break with the negotiations when your side needs to regroup or develop another strategy, or when it’s obvious the client is in a bad mood or preoccupied with other matters.
14. ​... Continue Reading....

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