What is “Claimsmanship”?
This term simply means that it’s the contractor’s responsibility to follow up his claims. It involves the employer seeking to enforce low rates and the contractor seeking to have extra works valuated i.e. negotiating claims for additional time or money.
Bills of Quantities are very crucial in valuation of claims for they reflect in practical terms the original bargain between the parties and the inclusion of day works is also often preferred by the contractors. The Contractor is expected to give notice to the Contract Administrator or as in most cases in the Ugandan Construction Industry, the Clerk of Works. It is important to remember that the contractor is obliged to give notice of loss or expense likely to be incurred. This doesn’t require the contractor to attempt to quantify the loss but only to inform the Contract Administrator that the same loss is likely and naming the cause of such possible loss. In Uganda its common practice that contractors feel they cannot give such notice until they are aware of the consequences of the loss.
However, it’s the obligation of the Contract Administrator to ascertain the amount of the loss since he represents the contract itself and not the interest of the Employer and in ascertaining the Contractors entitlement, the Contract Administrator is obliged to apply the rules of the contract and ensure that settlements are fair to both parties. Contrary to this, it leaves both the Employer and Contractor with no such obligation and hence they make claims based on whatever they fancy which is very dangerous. Therefore, it would be a grave mistake for the Contract Administrator to strike an average between what the Contractor is asking for and what the Employer believes the Contractor is entitled to because it would only serve to encourage both parties to take increasingly extreme positions in order to affect the final outcome.
Key aspects to look into include the following;
· Identifying potential claims as early as possible by thoroughly monitoring project progress, changes and/or any deviations from the signed contract
· Maintaining detailed documentation i.e. progress reports, photos, meeting minutes etc.
· Comprehension of the Contract in place. Have a clear understanding of the Conditions of Contract (general & specific) which consequently will aid you identify grounds for claims.
· Definite analysis of additional costs incurred and time impact of the claim
· Professionalism and Ethics. Avoid unfounded or exaggerated claims as this leads to damaged working relationships, shuttering of reputation and the like.
· Adequate preparedness for any disputes while also understanding the associated risks and costs that might arise when claims are escalated to mediation, arbitration or litigation.
TORT CLAIMS.
A tort is a breach of legal duty owed by one party to another and is independent of any contractual liability. The remedy for torts is recover of damage.
Tort claims are meant to provide for injury or damage or loss because of defective or dangerous work to parties that are not party to the contract. They include; subsequent owners, tenants, visitors or passersby. In determining the party responsible for negligence, it’s important to understand responsibilities of parties involved because negligence is the most common basis for Tort Claims.
There are 3 main limits of Tort Claims. These include the following;
1. Negligent advice and reliance. This is only upheld where there was an indication of voluntary assumption of Responsibility on the defendant’s part. Court may require a considerable degree of proximity between the parties to consider just and reasonable in causing responsibility in tort for the advice given.
2. Negligent acts and economic loss. Liability in tort for negligent construction work will enable compensation only in cases of injury or damage to property.
3. Effect of Contract on Tort. In deciding whether it would be fair and reasonable to impose a duty of care to a particular party, it’s relevant to consider his contractual position and the contractual position of other parties involved. Where the plaintiff and defendant are joined by a contract, the duty of care in Tort should cover no wider ground than is covered by the contract.
In a nutshell, claimsmanship combines attentive, expertise and calculated negotiation to manage and resolve claims effectively, ensuring that entitlements are enhanced while maintaining professional and ethical standards.