What Should a Contractor Consider Including in Claim Documents?
A Contractor’s claim can be worth millions; so, it is sometimes surprising to see how little thought is put into the claim documents. To have a better chance to recover your claim, the claimant Contractor needs proof (hopefully written) to isolate the causes of the claim and the amount of its added costs and work time.
In the Winter 2012 ABA publication The Construction Lawyer, Douglas Oles provided a list of the minimum requirements for claim documentation from the General Conditions for Washington State Facility Construction (check out pages 38-39).
It is quite a list of requirements (requiring much more than most construction contracts), and the list is worth including here because it might provide you with some ideas for items that you might include in your claim. These are also many of the same documents that your construction lawyer will need to prove your claim anyway. Note, however, that the facts and circumstances of your particular project may dictate different requirements than those below.
So, here is the list with my commentary in italics:
- Factual Statement of Claim – A detailed factual statement of the Claim for additional compensation and time, if any, providing all necessary dates, locations, and items of Work affected by the Claim. Describe the facts giving rise to the claim in detail. Tell what happened and include the names of those involved (i.e. the what and who).
- Dates – The date on which facts arose which gave rise to the Claim. (i.e., the when.)
- Owner and A/E Employees Knowledge about Claim – The name of each employee of Owner or A/E knowledgeable about the claim. Let the owner know that its representatives and agents know about the claim.
- Support from Contract Documents – The specific provisions of the Contract Documents which support the Claim. Show the owner that your agreement entitles you to payment for the claim.
- Identification of other supporting information – The identification of any documents and the substance of any oral communications that support the Claim. Provide evidence supporting the claim.
- Copies of Supporting Documents – Copies of any identified documents, other than the Contract Documents, that support the Claim. Attach copies of emails, letters approving work, invoices and other documents supporting claim amounts.
- Details on Claim for Contract Time – If an adjustment in the Contract Time is sought: the specific days and dates for which it is sought; the specific reasons Contractor believes an extension in the Contract Time should be granted; and Contractor’s analysis of its Progress Schedule to demonstrate the reason for the extension in Contract Time. This one requires a word of warning. If you provide this information be sure to state that you reserve the right to have a claims expert or consultant review the Claim and he or she might revise the claim based on their assessment. You don’t want to lock yourself in this early when you have not had a claims expert review the claim.
- Details on Claim for Adjustment of Contract Sum – If an adjustment in the Contract Sum is sought, the exact amount sought and a breakdown of that amount. Again – the same warning here. Include a statement saying that you reserve the right to increase it based on an expert review or gaining more information.
- Statement Certifying Claim – A statement certifying, under penalty of perjury, that the Claim is made in good faith, that the supporting cost and pricing data are true and accurate to the best of Contractor’s knowledge and belief, that the Claim is fully supported by the accompanying data, and that the amount requested accurately reflects the adjustment in the Contract Sum or Contract Time for which Contractor believes Owner is liable. This statement shows that you are swearing to the claim and it shows that the claim is being taken seriously.