Will your next construction variation claim be successful?

​In my last 3 posts ‘Construction project variations – have you included all your costs’ (Read more), ‘Understanding the real cost of delays on your construction project’ (Read more) and ‘Are you working for free on your construction project’ (Read more), I discussed the reasons for delay claims and scope changes and what costs could be included when construction companies submit their claims for these changes and variations.

However, a construction variation claim could be rejected by your client if it doesn’t include all the correct and required information.

​Winning change orders requires effort

I have seen many poorly put together variation claims or change orders. Some for millions of dollars, yet construction companies seem to think that they can apply minimal time and effort to formulating their variation claims. That it will be easy money! The client will pay their variation claim – they just have to! Some even delegate their construction claim preparation to junior inexperienced quantity surveyors or contract administrators. Sometimes the construction project manager isn’t even aware a claim has been submitted and is blindsided when their client takes offence to a spurious or unsupported claim. ​Should construction project managers take the lead with variation claims?

Some of these claims are poorly thought out and presented. I’ve seen claims with arithmetic errors, spelling mistakes (even incorrectly spelling the client’s name), factual errors, contradictory information, confusing language and unsupported evidence.

Consider how hard a contractor has to work to earn ten thousand dollars, or even a million dollars, so why then do some construction companies expect to spend minutes, or an hour, preparing a claim for the same amount. Construction companies should ensure that a knowledgeable and experienced person is allocated to draft the claim (familiar with the contract, the client and the work that’s been done) and that it is reviewed and checked by the project manager before it’s submitted.

​What to include in your construction change order

​What to include

A properly drafted and well thought out claim will be hard for your client to refute and it’s likely to be successful.

To increase your chances of a successful claim here are some points to consider. Claims should have:

1. a description of the event

2. the cause of the event

3. the date of the event, where relevant

4. the impact of the event

5. steps taken to mitigate the impact

6. the cost and time impacts of the event

7. all supporting documentation attached, or should refer to supporting documentation correctly referencing the relevant  contract clause numbers, construction drawing numbers, schedule or program item numbers, correspondence, Bill of Quantity items or construction contract specifications as required

 It’s essential that this supporting documentation is relevant to the claim, supports the claim and is not contradictory (any contradictions must be explained as part of the claim).

As part of formulating the impact of the event all calculations and schedules should be included. The claim schedule should reference the approved contract schedule. Calculations should reference where the facts and figures came from and how they were put together. The calculations should be checked for arithmetical errors (which can occur all too frequently).

Remember to include all of your legitimate and claimable costs (as discussed in my previous articles). It’s usually difficult to add in extra forgotten costs after you have submitted your claim. It’s unprofessional and will annoy your client. It may even cast doubts on the legitimacy of your original claim.

​Do not surprise your client with the change order

​Notifying your client

The client must be notified of variations as soon as the contractor becomes aware of them, and certainly within the time specified in the contract. Failure to do so may mean the contractor loses their right to claim.

The claim must:

1. be lodged within the time-frame specified in the contract

2. be addressed to the correct person

3. be delivered to the correct address

​It’s often a good idea to discuss large or contentious claims with the client before submitting them. This not only forewarns the client the claim is coming, but also provides an opportunity to discuss the reasons and the merits of the variation.

Also ensure the client is aware that you are willing to discuss the claim and answer any questions they may have. I use the word ‘discuss’ and not ‘negotiate’. To indicate that you are willing to ‘negotiate’ gives the idea that you have built fat into your claim and that not all the costs are legitimate, which will immediately put your client on their guard and they will already doubt that your claim is legitimate or accurate.

​Ensure your change order is approved

​Construction variation claims that are clear and concise, and which have facts which are supported and can easily be justified are often agreed and settled with clients with little effort. Once contractors get a reputation of submitting inflated or bogus variation claims it can become difficult to convince the client when a reasonable and just construction variation claim is submitted.

Of course a variation claim can be more easily supported if the contractor has maintained accurate documentation during the course of the construction works (like Daily reports), communicating regularly with the client, and has taken all reasonable steps to prevent the claim from arising. Of course contractors must also understand their contract documents (your construction project contracts - why you need to understand them)

​#constructionvariations #constructionprojectmanagement #contractors

© 2022 This article is not to be reproduced for commercial purposes without written permission from the author.

"An excellent, concise and very practical guide to successful claims process." Amazon UK Reader

This article is compiled from information in Paul Netscher's book 'Construction Claims A Short Guide For Contractors' 

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