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We help Australian Contractors get their payments hassle free.
Office Located at Level 1/11 E Parade, East Perth WA 6004
Speak to an Engineer-Lawyer now
08 6219 3274
CONSTRUCTION LAW SERVICES
ABOUT OUR FIRM
PROJECTS
CONTACT
Book Your Free First Consult
Services:
Adjudication
Security of Payments Act Lawyer WA
Contract Reviews
Claims for Delay & Disruption
Contract Management
Project Development Strategies
Insurance Claims
Locations:
Perth
Gosnells
Joondalup
Melville
Rockingham
Stirling
Wanneroo
ROLE SPECIFIC:
Mega Project
Developers
Sub Contractors
Tradies
Property Investors
Homeowners
INDUSTRIES:
Mining
Infrastructure, Roads, Bridges
Oil & Gas
Office Buildings
Electrical, Windfarms, & Solar
Heavy Rail, Metro & Light Rail
Smelters, Steel, Alumina, Gold
Civil
Speak to an Engineer-Lawyer now
CALL 08 6219 3274
X
CONSTRUCTION LAW SERVICES
ABOUT OUR FIRM
PROJECTS
CONTACT
Back
CONSTRUCTION LAW
SERVICES
LOCATIONS
ROLE SPECIFIC
INDUSTRIES
Back
Services:
Adjudication
Security of Payments Act Lawyer WA
Contract Reviews
Claims for Delay & Disruption
Contract Management
Project Development Strategies
Insurance Claims
Back
ROLE SPECIFIC:
Mega Project
Developers
Sub Contractors
Tradies
Property Investors
Homeowners
Back
Locations:
Perth
Gosnells
Joondalup
Melville
Rockingham
Stirling
Wanneroo
Back
INDUSTRIES:
Mining
Infrastructure, Roads, Bridges
Oil & Gas
Office Buildings
Electrical, Windfarms, & Solar
Heavy Rail, Metro & Light Rail
Smelters, Steel, Alumina, Gold
Civil
Book Your Free First Consult
Engineer & Strategic Lawyer Advice: Best of both worlds
CONSTRUCTION LAWYERS PERTH
Qualified Construction Experts who developed 100s of projects before coming into
the law.
Baker Merz Construction Lawyers is a Quantity Surveying and Law Practice
regulated by the Law Society and the Royal Institution of Chartered Surveyors.
CALL 08 6219 3274
OR
GET A FREE CONSULTATION
Why engage a Law Firm that needs to be assisted by a "team of experts" when you
have access to our Construction Experts that develop 100s of projects before
coming into the law.
What sets us apart? Our team isn't made up of just 'lawyers' - we are seasoned
professional engineers, quantity surveyors, and contract managers who have
managed real projects and dealt with real problems with clients, subcontractors,
consultants, councils and licensing boards before coming into the law (our
Principal is a DJUR with MCIBSE, C.Eng, MRICS, and MAIPM registrations and
worked for AECOM, Bateman, Tenova and Fluor on projects across WA). It is this
first-hand construction experience that allows us to see your issues through
your eyes and allow us to develop strategies to resolve them.
We are also experienced Adjudicators and regularly represent clients in disputes
under the Building and Construction Industry (Security of Payment) Act 2021,
mediation, arbitration, and the courts.
We can answer your questions and provide representation to defend your
interests, such as drafting or reviewing your contracts, pursuing payment for
your work, getting permits for what you need to do with local councils or
Building and Energy and claiming or defending against parties claiming work was
defective or not completed on time.
WE ARE DUAL QUALIFIED ENGINEERS & LAWYERS
OUR SERVICES INCLUDE
Schedule analysis, prepare variations/claims for Cost & EoTs.
Provision of specialist procurement and contract administration resources to
contractors during the delivery phase.
Contracts and Ts and Cs for procurement of long-lead items, fabrication and
modularisation, transport and installation.
Identify counterclaims and apply liquidated damages.
Insurance claims for design liability, performance below specification,
incomplete works and re-work.
Draft payment claims or payment schedules and follow through in the adjudication
process.
CHOOSING THE RIGHT CONSTRUCTION LAWYER CAN SIGNIFICANTLY IMPACT THE SUCCESS OF
YOUR BUILDING, INFRASTRUCTURE, RENEWABLE ENERGY, OR MINING PROJECT.
Key factors to consider include:
* Experience in project development: Professionals who have spent years on
front-end design environments and construction sites as commercial managers,
or preparing desktop studies, development plans, setting up budgets and
dealing with change are best equipped to interpret the intention, purpose,
meaning, and implications of clauses in construction contracts. This hands-on
experience is crucial for navigating the complex and litigious mining
construction landscape of today.
* Understanding of Local Regulations: A deep familiarity with the approval
processes, compliance with standards and codes, licensing, and the specific
issues that arise in projects similar to yours is essential.
* Expertise with Various Construction Contracts: Knowledge of different types
of construction contracts (EPC, EPCM, PMC, PMCM, JVs, RCAs, TAs) will help
ensure that your interests are well-protected.
* Industry Insight: Only an expert who has advised CEOs and company boards and
understands the operational dynamics of a construction firm can offer sound,
practical, and strategic advice.
* Specialisation in Resolving Disputes: We likely already dealt with a dispute
involving similar circumstances to what brought you to this website. Some 50%
of our clients settle their disputes even before legal action commences; this
is because we prepare fully substantiated cost and delay claims that deal
with defects, variations, valuation, disruption, and payment disputes on
their projects with a solid contractual/legal argument that leads to
commercial negotiations and early settlement.
* Client Service Approach: Service, responsiveness, legal cost control and
meeting your expectations are our paramount drivers. Our reward is a
long-lasting relationship.
CALL 08 6219 3274
OR
COMPLIMENTARY CONSULTATION
WE CAN ASSIST YOU WITH
CONTRACT REVIEWS AND
CONTRACT ANALYSIS
Our engineering expertise and on-site construction experience allows us to
interpret, analyse and provide contract recommendations across different areas
such as rights, liabilities, duties, and scope under Australian Standard
Contracts (AS4000 and AS2124 Series), Australian Building Industry Contracts
(ABIC), Master Builders Association (MBA), WA Security of Payments Act
compliance as well as FIDIC, JCT & NEC4 standard contracts.
We provide pre-contract audits to identify standard terms and conditions and
suggest amendments that transfer or re-assign high or unnecessary risks.
A well-written contract minimises risks. Before you sign any agreement, we will
make sure that it is in your best interests and that you understand your
exposure.
WA ADJUDICATION AND
DISPUTE MANAGEMENT
We conduct a thorough contract analysis identifying the key terms and conditions
in the contract. We review the drawings, technical specifications and site
records to determine the cause, effect and merit of any claim.
Our written claims consist of plain English narratives, relevant cost and CPM
delay analyses and referenced evidence files.
Before we refer the matter to adjudication, we will also determine the need for
affidavits and expert reports to ensure that claims are able to withstand any
scrutiny.
We are experienced acting for our clients in formal and informal dispute
proceedings, and regularly brief counsels and barristers.
We will guide you through the legal process, and work towards a resolution of
your dispute in the shortest possible time.
DELAY, DISRUPTION, ACCELERATION
CRITICAL PATH DELAY ANALYSIS
We offer in-house planning and scheduling services. When delays do occur, we
analyse the baseline schedule and progress updates to develop prospective and
retrospective windows and time-impact analysis.
We determine delays, concurrent delays, apportionment, and liability.
We calculate labor and productivity rates using earned values or measured mile
methods to determine the exact quantum of disruption claims.
Our claim documents present delay and disruption data in particularised and
auditable format.
We also prepare acceleration claims, evaluate merit, quantum and entitlement to
an EoT claim and provide Third Party Independent Reports to help our clients
understand the strengths and weakness of their position.
CONTRACT MANAGEMENT AND FINANCIAL RECOVERY
It is common knowledge that the root causes of troubled projects plagued by
delays and cost overruns tend to be centred in incomplete project planning,
inadequate schedule tracking and poor contract and financial control.
We combine our legal, engineering, planning and quantity surveying capabilities
to help our clients devise all-encompassing project development procurement and
contracting strategies to significantly de-risk any project. We typically manage
the resolution of claims independently. This frees up the hands and allows the
Contracts Management and Construction Teams to concentrate on their primary
objective of delivering the project.
The advantages of this approach is a positive cashflow from the start and lower
overall project administration expenditure. All of our lawyers are construction
experts in their own right, no time is lost in understanding the issues
affecting cost schedule or scope issues internally with the Project Team and
communicating them to the Client.
PROJECT DEVELOPMENT STRATEGIES
INTERNATIONAL EXPERIENCE
We help developers identify suitable partners that lead to teaming agreements
and the setting up of successful joint ventures.
We prepared winning proposals developing economic cases required by Financial
Institutions that enabled our clients to obtain finance for their projects in
Australia and Overseas and assisted with project structuring begining from early
Desktop studies to PFS, FS helping select the right type of contract (D&C, EPC,
EPCM, Turnley, etc).
We then assist run the ECI phase (if required), obtain planning and authority
approvals and prepare the required Teaming Agreements, NDAs, EOIs, RFTs and
drafting of contracts, including head contracts, subcontracts, consulting
contracts and supplier agreements.
We also help with contract reviews, including preparing tender qualifications,
negotiating final contracts and drafting any required amendments.
INSURANCE CLAIMS
Fast-track projects leave a trail of defects, some deep underground where they
are impossible to rectify.
We provide technical and legal advise on the treatment of rectifiable and
un-rectifiable defects, insurance, owner or contractor self-insurance, and even
decennial insurance.
We acted on major insurance claims, advised self-insured clients, government
bodies and statutory authorities. Our team developed the diverse skills required
to cover all aspects of insurance advice and insurance claims management.
Our expertise includes policy interpretation and drafting, advising on policy,
indemnity and subrogation issues, conducting recovery action and representing
clients in front of insurers.
WE ACT IN THE FOLLOWING INDUSTRY SECTORS
INFRASTRUCTURE, ROADS, BRIDGES
We acted on PI Claims for design errors, omissions and lack of coordination. We
also acted on claims for latent conditions, unforeseen utilities, additional
detours, EoTs, disruption and constructive acceleration.
We also provided Contract Administration services, including review, negotiation
and closing out of outstanding subcontractor and Head Contract variations for
various Defence projects in the WA.
ELECTRICAL, WINDFARMS, & SOLAR
Our Perth Principal is an Electrical Engineer. We provided strategic engineering
advise to deal with AEMO requirements helping determine the technical case (load
flow and harmonics analysis). We prepared Delay and Disruption and Liquidated
Damages claims.
We also acted on disputes for cashing in of bank guarantees for late
performance, treatment of Force Majeure events, and establishing delay
compensation entitlements managing extensive arbitration proceedings.
PROCESS PLANTS
We were engaged in providing Contract Management Services for a contractor
developing a bottling plant and office facilities. The Project featured water
treatment plants (drinking and wastewater), bottling plant equipment, storage,
and managing raw materials and finished product conveyors to the truck bay.
We also worked for a major Australian manufacturer of biscuits, building a
distribution plant that included storage conveyors and product distribution to
truck loading systems.
MINING
We assisted clients to form Joint Venture agreements to complete feasibility
studies to bankable quality, develop and ECI and produce an overall project
delivery strategy.
We drafted the MOUs between the different members of the JV, assisted with the
separation of scope and delineation of battery limits for each member, and
prepared procurement and transportation contracts for the sourcing of overseas
equipment and modules, arranging freight and transport to site and insurances.
OFFICE BUILDINGS
Over 20-years experience developing landmark buildings such as the Star City
Casino with carpark, offices, hotel and apartment towers and Lyric and Show
Theatres, the Chiffley Tower building, Manly RSL Club pool complex, Cronulla
Shark’s Stadium, and residential estates.
OIL & GAS
We acted on offshore oil and gas production platforms, subsea pipelines, onshore
gas-conversion refinery projects, fuel gas areas, pump houses, Steam Turbine
Generators (STG) area and Power Plants, gas wellhead skids, crude units, fluid
catalytic crackers, light products plants, polymerisation plants, amine plants,
sulphur plants, and impurities treatment plants.
CIVIL
We prepared claims for unsuitable ground conditions, latent conditions,
unforeseen utilities, cracks and tears on the surface layer and slippage of
asphalt due to incorrect sub-base or compaction. Claims for wrongful termination
of the contract, uninducted and unlicensed personnel, use of faulty and
unapproved equipment, and defence of unmeritorious claims.
HEAVY RAIL, METRO, & LIGHT RAIL
From coal and iron ore loaders and unloaders, transport and port storage
agreements, to TVM tunnelling, underground and overhead track to underground,
on-ground and elevated stations, with retail sections, maintenance facilities,
ticketing and operations and maintenance contracts. We assist clients with all
authority approvals.
SMELTERS, STEEL, ALUMINA, GOLD
We developed and administered contracts for alumina smelters and carbon bake
facilities in Gladstone, bauxite mining in Gove and iron ore mining and
processing in the Pilbara. We have an impeccable record in assisting our clients
with development contracts, crown land grants and project development in
general.
Albert Merolla JD
Principal
In an environment where timelines are critical, construction lawyers with real
on-site construction experience as engineers, quantity surveyors and commercial
managers with the ability to produce the right answer in a short period of time
makes an enormous difference to your chances of success and is the main
contributor to our own success in this challenging environment. While others
promise the ability to “mobilise a team on short notice to meet the onerous time
requirements of proceedings”, our expert team resides in-house.
Did you know? Our CEO and Principal, Albert Merolla JD, is a seasoned
construction lawyer and adjudicator with a rich background as an engineer,
planner, and quantity surveyor. His 30-year career has seen him evolve from
design engineering to a pivotal role as a project development advisor for
governments and premier clients globally (BHP, RIO, FMG, BMA, Mitsubishi
employed by Fluor, Bateman and AECOM). With degrees in Engineering, Quantity
Surveying, and Law (MCIBSE, MRICS, MAIPM, DJUR), coupled with practical
experience in drafting contracts, contract correspondence, variations, delay and
disruption claims and taking disputes to licensing boards, tribunals,
Magistrates, District, Supreme Courts, ADR (mediation, arbitration) and even
currently deciding disputes as a registered adjudicator, he brings an unmatched
blend of skills. His leadership experience in managing large teams and engaging
with diverse consultants ‘in their language’ ensures top-tier client service and
effective legal management. Today, as a principal and leader of a construction
advisory practice, he integrates an impressive mix of qualifications from
multiple fields, making him a distinguished choice for anyone facing complex
construction law challenges.
CONSTRUCTION LAWYERS PERTH
When you need Lawyers who truly understand Construction
WHAT WE DO....
We aim to assist Developers, Builders, Contractors, Corporations, and Local
Authorities by using our 30-years plus of experience in the construction
industry. We acted as Design Engineers, Estimators, Schedulers, Contract
Administrators, and Project Managers before coming into the law. We know from
first-hand experience what is needed to prepare and administer contracts that
combine Ts & Cs, technical specifications, drawings and commercial terms. We
also prepared variations and managed the claim process and led the resolution of
construction disputes that required a high level of technical, scheduling and
construction knowledge when based on site.
As Engineering, Construction, and Law Matter Experts, we can:
Help you identify the merits of your claim.
Determine your rights and entitlements under the contract.
Value your claim and determine the length of an EoT.
Prepare fully substantiated Payment Claims, Payment Schedules, Adjudication
submissions and attend Court on your behalf.
We are here to save you time and money. You do not need to engage a law firm who
needs assistance from a ‘a team of construction experts’, WE ARE construction
experts that developed 100’s of projects and learnt what it means to manage
contracts on-site before we became lawyers.
“We understand that you want to maintain a cordial relationship with your
client... but you also need to get paid. We help by developing soft approaches
to dispute resolution before taking any adversarial steps.”
Why engage us?
Over 50% of our clients settle their disputes even before legal action
commences. This is because we prepare fully substantiated cost and delay claims
that deal with defects, variations, valuation, disruption, and payment disputes
on their projects with a solid contractual/legal argument that leads to amicable
commercial negotiations and early settlement.
With 30 years of experience participating in design engineering teams and
on-site construction as EMs, PMs or CAs, for leading companies such as CPB, Lend
Lease, AECOM, Fluor, Worley Parsons, FMG, Rio Tinto, Worsley, and BHP, we
guarantee our complete understanding of the issues that arise on heavy industry
construction sites and understand the perspectives of all participants and
stakeholders involved in a construction dispute - we likely already dealt with a
dispute involving similar circumstances to what brought you to this website.
Why Choose us?
1. Fast results at low cost: Our team possesses a unique combination of legal
expertise, engineering, planning, delay analysis and project costing
knowledge. This multidisciplinary knowledge base sets us apart and allows
us to offer comprehensive solutions that align with the technical
intricacies of construction projects, reducing the time we need to spend on
your case, your case preparation and legal costs and the time it takes to
resolve your dispute.
2. Regulated by RICS: We do not need to engage external construction experts;
we are the experts. We are the only law firm in Australia regulated by the
Royal Institution of Chartered Surveyors (RICS). This prestigious
accreditation demonstrates our contracts/planning/ costing knowledge and
commitment to upholding the construction industry's highest professional and
ethical standards.
3. Tailored Solutions: Whether you are a contractor, developer, supplier, or
consultant, we have the technical and commercial expertise to navigate the
legal challenges you may encounter. We understand that every construction
project is unique and pride ourselves on delivering tailored legal solutions
that meet your needs.
4. Proactive Approach: We strive to identify and defuse potential issues
before they escalate. Our attention to detail and thorough understanding of
industry regulations ensure you receive comprehensive legal guidance at
every stage of your project.
5. Client-Centred Service: Our clients are at the heart of everything we do. We
prioritize open communication, responsiveness, and a collaborative approach
to ensure that we fully understand your goals and concerns. Our team is
dedicated to providing you with personalized attention and guidance so that
you can confidently make informed decisions.
6. Industry Connections: Over the years, we have built strong relationships
with key stakeholders in the construction industry, including contractors,
developers, architects, and engineers on every discipline. Our extensive
network allows us to connect you with trusted professionals who can support
your success.
Our offering consists of:
Contract review and formation services, strategy and administration
Planning, Scheduling, EoT, Prolongation, Disruption and Acceleration Claims
Payment Claims and Schedules - Adjudication Applications & Responses
Dispute management: Expert determination, arbitration and litigation
CALL 08 6219 3274
OR
GET A FREE CONSULTATION
Why engage a Law Firm that needs to be assisted by a “team of experts” when you
have access to our Construction Experts that developed 100s of projects before
coming into the law.
COMPLIMENTARY CONSULTATION
Ask Us Any Questions, It Costs Nothing To Know Where You Stand
CONSTRUCTION LAWYERS PERTH
FREQUENTLY ASKED QUESTIONS
Q1 Our variations are being rejected and we are facing a huge loss. Is there
something we can do?
Q2 How do you overcome a time-bar, can you give me an example?
Q3 What do you think is the best course of action to avoid these situations?
Q4 Are we going to antagonise the main contractor if we look "contractual"?
Q5 The main contractor has been delayed, and these delays (which are not our
fault) have delayed our own work.
Q6 We priced a variation using the Schedule of Rates in the contract, but we
forgot to add the 10% overhead and profit.
Q7 We entered into a schedule of rates-based contract for the main works on a
major highway and it appears we made a mistake... can you help us?
Q8 We are a small subcontracting company and we haven't been paid for all the
work we completed for months. We need to be paid, what can we do?
Q9 We can see from the latest correspondence that we are about to enter into a
serious dispute, how can we prepare?
Q10 Communications broke down and we need to make a claim. Can you help us?
Q11 Can you help us with an acceleration proposal or constructive acceleration
claim?
Q12 How are delays classified?
Q13 Which delay analysis method is the best?
Q14 But my planner says that windows analysis is best. Is he right?
Q15 How is our claim going to be presented?
Q16 CLP has great back-end experience, do you have any front-end experience?
See answers below
* Q1
OUR VARIATIONS ARE BEING REJECTED AND WE ARE FACING A HUGE LOSS. IS THERE
SOMETHING WE CAN DO?
"We have been very busy doing really good quality work and breaking over
backwards to help the main contractor complete the project; we thought we
would be paid for all our variations and for all the extra work which are
just and fair. However, the main contractor is now enforcing the contract to
the letter and rejecting all of our variations on the basis that we did not
submit the appropriate notices in the required form and in the time specified
in the contract. Is there something we can do?... if the variations are not
approved we will incur a huge loss…"
A: 90% of our contractor clients come to see us asking this very same
question. The short answer is that it is unlikely that something cannot be
done. Although contracts specify what notice needs to be provided, in which
form, under which clause, whom it needs to be sent to, and within which
timeframe; either these are not strictly followed by the parties during the
execution of the contract (until a dispute arises), and this creates a
situation where it can be argued that the contract has been changed ‘by
conduct’ and the main contractor is estopped from enforcing the contract to
the letter.
In other cases where notification is required, the contract does not specify
what constitutes notification, for example, does an email or minutes of
meetings suffice or does it need to be sent formally to a nominated person?
The bottom line is that it is common the knowledge that the courts will
enforce all pre-conditions to a valid claim in the contract that you have
agreed to; however, if you can demonstrate that you have somehow provided
notice, there is a good chance that you will overcome the bars to recovery.
Book an appointment
* Q2
HOW DO YOU OVERCOME A TIME-BAR, CAN YOU GIVE ME AN EXAMPLE?
A: A subcontractor was building a new road, and during excavation discovered
a pipe which was classed as an ‘unforeseen utility’. The main contractor
complained that the subcontractor took over a month to notify the main
contractor of the find, advise how long it would take to relocate the utility
and estimate the approximate cost. The main contractor time-barred the claim
because the contract provided that a notice of variation had to be given
within seven days.
We were able to demonstrate that the subcontractor sent an email so the main
contractor on the day of the find, that it took about three weeks to identify
the owner of the utility, and that it took another four days to determine
whether it could be concrete encased and left in place or had to be
re-routed. The situation was one of impossibility of performance with strict
notification requirements, and the earliest time that the subcontractor was
in a position to advise the main contractor of the impact on time and cost of
relocating the utility was a month after the find. The variation was paid.
Book an appointment
* Q3
WHAT DO YOU THINK IS THE BEST COURSE OF ACTION TO AVOID THESE SITUATIONS?
A: Talk to us early. The first thing we do for our regular customers when
they enter into a new contract is to create a flow chart which includes the
steps that need to be taken to submit a valid variation. These include
notification requirements, number of days before it is time-barred, decision
boxes with ‘complied’ or ‘not complied’, references to the relevant clauses
in the contract, and what to do in case of dispute.
The flowchart is accompanied with a number of standard template-letters,
which address the requirements in the contract for a valid notification. We
also provide a delay-log spreadsheet and give you instructions as to how to
maintain appropriate records.This ready-made package is easy to implement by
any site team and preserves your entitlements to a claim. The documents
contain very straightforward and strong disclaimers that protect your rights,
i.e.
At the date of submitting this Notice:
1. The delay event has a duration that is not reasonably ascertainable by
the Subcontractor but is otherwise continuing in nature.
2. The delay event will have an impact on the Contractor’s Critical Path in
the approved Construction Program
3. The delay will prevent the Subcontractor from achieving Practical
Completion in accordance with the current program.
4. The delay is beyond the Subcontractor’s ability to reasonably control and
cannot otherwise be avoided by the Subcontractor; and
5. Is not the result of an act or omission directly or indirectly caused or
contributed to by the failure of the Subcontractor.
As soon as we implemented the package a PM wrote: “Good outcome. With our new
reporting system I feel we should be able to go through the motions until the
end when the Director will have a negotiation on his hands. First reporting
will be compiled and submitted this week.”
Book an appointment
* Q4
ARE WE GOING TO ANTAGONISE THE MAIN CONTRACTOR IF WE LOOK "CONTRACTUAL"?
"If the main contractor gets the impression that we are 'too contractual',
they are not going to consider us for their next project."
A: This is an urban myth. It is an inaccurate perception of how
subcontractors believe they will be treated by the clients they work for.
Yes, warnings are given on-site and strong correspondence is usually issued
to discourage subcontractors from becoming 'variation-happy', but as a
veteran managers employed by many tier-one companies who attended many a
board meeting, we can attest that a contractor’s listing in the tender for
another job depends entirely on performance in delivering the works under the
contract in the allocated period of time and to the expected quality and
price, and not in the efforts contractors spent to administer the contract to
the letter and secure their just entitlements. In fact, it is common
knowledge amongst Directors who make tough commercial decisions, that only
subcontractors who secure their entitlements can survive in this industry -
they expect you to be tough, respect you for it, and in spite of all the
posturing and aggression they are happy to see you grow with them.
We can also attest to the fact that many subcontractors who are afraid to
raise a variation fearing they are not going to be looked at favourably, lose
the chance to be appropriately compensated when the event that gave rise to
the variation was (perhaps unknown to them) a client’s risk. We witnessed
many such unfortunate events where representing the head contractor, we would
have written a back-to-back variation to the client to ensure our
subcontractors were compensated appropriately. Most head contractors look
after their subcontractors and keep a good and cordial professional
relationship with them.
Finally, if it is your fault, and you are delaying the project and losing you
and them money, expect no mercy. But to talk to us about what we can do to
help you recover or mitigate your loss.
Book an appointment
* Q5
THE MAIN CONTRACTOR HAS BEEN DELAYED, AND THESE DELAYS (WHICH ARE NOT OUR
FAULT) HAVE DELAYED OUR OWN WORK.
The main contractor is executing the project on a lump sum basis and is
rejecting all of our requests for extensions of time and additional cost
because of our alleged lack of compliance with notification requirements. Is
there something we can do?"
A: When a main contractor is executing a lump-sum contract that has gone
wrong (for them) for whatever reason, it will naturally attempt to ‘share the
pain’ to avoid a loss. Those are the types of contacts where subcontractors
need to be extra-careful in their day-to-day administration. Once we brief
the site administration team with the contracts administration flow chart
described earlier and provide the letter templates, we can assist in drafting
all correspondence to the main contractor.
Book an appointment
* Q6
WE PRICED A VARIATION USING THE SCHEDULE OF RATES IN THE CONTRACT, BUT WE
FORGOT TO ADD THE 10% OVERHEAD AND PROFIT.
We re-submitted the (amended) variation, but the client now says that day
variation was lump-sum, and that since he already paid it, we are not
entitled to amend it."
A: The determination of the value of a variations in most contracts is
typically assessed in a cascading regime where the first step is for the
parties to try to agree the value of their variation, the second step is to
determine the value of the variation using the rates in the contract, and if
none of these two steps is available (generally because the parties dispute
the value of the variation) contracts typically provide that main contractors
have to determine ‘fair value’.
In this case, where a variation has been priced in accordance with the
schedule of rates in the contract, and the contract provides a formula to
calculate the value and the party that made a mistake is entitled to correct
the arithmetical error.
Book an appointment
* Q7
WE ENTERED INTO A SCHEDULE OF RATES-BASED CONTRACT FOR THE MAIN WORKS ON A
MAJOR HIGHWAY AND IT APPEARS WE MADE A MISTAKE... CAN YOU HELP US?
"We entered into a schedule of rates-based contract for the main works on a
major highway, which included a detailed list of rates for detours, but we
did not realise that a contract document specified that the permanent works
are paid on a schedule of rates, but all temporary works were paid on a lump
sum basis and were not re-measurable. The project needed eight detours, but
we priced only the six in the schedule of rates. Can we claim a variation for
the other two? Why were the rates for detours in the schedule of rates if
these were not re-measurable?"
A: It is often the case that the design of a project and the procurement and
contracting strategy starts life as a 100% schedule of rates contract but
changes to a lump sum contract whole or in part. Clients do this to transfer
risk to the subcontractor and bring certainty to their final cost of the
project.
This appears to be the case in this example, and the schedule of rates for
components of the detours was left unchanged after the change in strategy to
transfer the risk for detours to the subcontractor had taken place. This
obviously confused the subcontractor’s estimating team who priced the rates
and failed to interpret the change in the contract terms correctly.
However, in this case, the order of hierarchy of documents in the contract
dictated that the schedule rates (which still had a statement dictating that
all detours were re-measurable), had higher hierarchy than the standard
conditions where the detours had been changed from re-measurable to lump-sum.
We were able to demonstrate that regardless of what the standard conditions
said in relation to the detours being lump-sum, these were specified as
re-measurable in a document of higher hierarchy. The courts interpret the
contract against the drafter, and we were able to assist the contractor and
recover the costs for all eight detours.
Book an appointment
* Q8
WE ARE A SMALL SUBCONTRACTING COMPANY AND WE HAVEN'T BEEN PAID FOR ALL THE
WORK WE COMPLETED FOR MONTHS. WE NEED TO BE PAID, WHAT CAN WE DO?
A: This short-question typically arises when month after month Payment
Schedules have lower value than Progress (Payment) Claims. You may try
sending payment reminders and claiming the unpaid amounts on subsequent
Progress Claims. If it comes to the point when finances are tight and you
need to do something more, Letters of Demand certainly do not work (in
construction) and you have to instead consider the dispute resolution
provisions in the contract, adjudication under the Building Industry Fairness
(Security of Payment) Act 2017 (SOPA), or take your claim to the courts.
The WA Security of Payments Act is our recommended first step. The WA SOP Act
is designed to provide effective, efficient, and fair processes for securing
of progress payments. Also bear in mind that you do not have to follow the
dispute resolution process in the contract because WA SOP Act is the law. We
actually recommend going straight to adjudication under the Act and then come
back and use the dispute resolution processes in the contract to increase
your overall recovery if adjudication was not wholly successful.
Book an appointment
* Q9
WE CAN SEE FROM THE LATEST CORRESPONDENCE THAT WE ARE ABOUT TO ENTER INTO A
SERIOUS DISPUTE, HOW CAN WE PREPARE?
A: The signs are always clear in the notices, Payment Claims or Schedules,
minutes of meeting, discussions and general correspondence. You need to keep
good site diaries, get the other side to sign them every day, track and
update your schedule and issue it every month.
If you are a Main Contractor, do not elevate the discord by rejecting and
disputing ‘everything’, claim or approve what is fair and limit your team to
disputing what is not.
Get a contract review, even the more seasoned contract or commercial managers
misinterpret the contract. We just reviewed entitlements for a company who
has a panel agreement with a government organisation who greatly
misunderstood the method of payment and determination of the prices in the
schedule for banded rates, i.e. the quantities were measured ‘on completion’
of a work order, and if the variations put the entire works in a lower band,
the final value of the entire contract was re-calculated and adjusted. The
contract’s manager was under the impression that completion of an item of
work in the work order instead of all items in the entire work order
triggered the setting of the applicable rates in the band.
Above all, do not make it personal. It is unfortunate when one gets to see a
huge amount of money spent on legal fees, which at times are well above the
value of the claim, because at the heart of the dispute two people chose to
not get along.
Book an appointment
* Q10
COMMUNICATIONS BROKE DOWN AND WE NEED TO MAKE A CLAIM. CAN YOU HELP US?
A: Perhaps. We are “true” ‘construction lawyers’. All lawyers are allowed to
adopt the moniker ‘construction lawyer’, even if they know nothing about
actual construction. These ‘construction lawyer’ create unrealistic
expectations (and further loss) for their clients by pursuing claims while
oblivious to the fact the claims they are pursuing are invalid and
unwinnable.
We wrote on 18 September 2021 the below in reply to a so-called ‘construction
lawyer’, who is probably unaware of the fact she is pursuing an unwinnable
claim. All the red flags for you as a client are there, her claim evolved
from ‘unlawful termination’ to ‘my client did not read the contract’, and
even includes ‘we acknowledge the claim contains errors and some the
personnel in the claim did not attend the site’:
“The contract your client signed without reading is legally binding. The
costs claimed are both unsubstantiated and unreasonable. The excuse that the
alternative 25 Ton excavator provided by your client on the night was
accepted by our Client is just nonsense. Our Client had no choice, it either
accepted the alternative excavator your client turned up with or no work
would be carried out in a night where detours and traffic police were in
place waiting for your client to excavate the stormwater trench, which he was
unable to excavate anyway because (a) the alternative 25 Ton excavator was
too big and (b) his personnel were not inducted. Your client carried out no
work at all, and my Client obtained no benefit that he may be liable to pay
for even in contract, in tort or in equity; on the contrary, my client was
embarrassed by your client’s lack of professionalism and breach of trust
relating the agreed 14 Ton excavator, lack of inductions of personnel and had
to take remedial action at its own expense”.
We can explain your case quickly and inexpensively because we are engineers
and builders too, we rarely ever need to approach ‘experts’. We can review
the technical merits of any claim, and because ‘we do really know
construction’, we can see if your delay claim has merit because we track
progress ourselves for many clients and use P6. We do advise our clients that
their claim may not be meritorious before they spend any money on us (legal
fees) and/or in litigation. We wrote this the next day after dealing with the
25 Ton excavator saga:
“We reviewed your invoice No 031, the contract, and the recommendations of
the Royal Institute of Quantity Surveyors (RICS) in relation to the rules of
measurement of fill material and common practice in relation to your dispute,
and regret to inform you that it is unlikely that you will obtain a favorable
outcome either in adjudication or the courts. Both the Contract, and RICS
Rules of measurement for earthworks tell us that the quantities from the
drawings are (a) bulk before excavating or (b) net measuring the void to be
filled. This means that in both cases the contract and the RICS rules tell us
that payment is on net quantities, or in situ and compacted and without the
additional bulking factor claimed in Invoice No 031.”
But when we take on a matter we are typically hugely successful. Below is an
excerpt of an adjudication decision issued in September 2021. We prepared the
adjudication application, payment claim 11, the accompanying chronology, a
delay analysis and cost breakdown fully in-house.
“Accordingly, I have decided the correct valuation of delay damages incurred
due to the suspension is under clause 34.4. The Claimant has provided its
detailed breakdown of the costs of suspension in payment claim 11. The
Respondent has only rejected the Claimant’s entitlement to delay damages and
has not challenged the quantum of that claim. I have compared the costs to
the provisions of the Contract and, prima-facie, the costs are the type of
cost that I would expect claimed. Accordingly, as detailed above, I find in
favour of the Claimant and value the work at $186,900.85 including GST. In
the context that I decided above that the Claimant is entitled to an
extension of time, the Respondent’s claim for liquidated damages must fail.”
Book an appointment
* Q11
CAN YOU HELP US WITH AN ACCELERATION PROPOSAL OR CONSTRUCTIVE ACCELERATION
CLAIM?
A: Most certainly. We typically propose that acceleration proposals be
instructed as a direction to accelerate the work under the contract and paid
as a lump-sum variation with amounts included on payment claims made on
agreed dates rather than measure of completed works, i.e.September (30%),
October (30%), November (30%) and December (10%).
Below is a snapshot of a simplified offer we completed for a client in
September 2021:
The proposal included an acceleration schedule for a remote site in the WA,
an implementation plan and a list of deliverables. The financial proposal
included incentive payments for personnel for extended swings, project
completion payments, and wage increases, most of which we suggested. Of
course, when acceleration is implemented, production rates decrease sharply
and this is taken into account in the calculation of costs and when preparing
the schedule.
This same process of analysis is followed when constructive acceleration has
been instructed by clients.
Book an appointment
* Q12
HOW ARE DELAYS CLASSIFIED?
A: Independent or Parallel Delays
Parallel delays are delays that are the sole responsibility of one party
regardless of whether they affect the critical path, they should not be
confused with concurrent delays where the responsibility for each delay rests
with a different party.
Serial or Sequential Delays
Delays that fall on the same section of the critical path and one delay
impacts the other, i.e. design delays where the contractor delays the
submission of shop drawings and the Engineers take longer than allowed in
approving.
Concurrent Delays
A true concurrent delay is the occurrence of two or more delay events at the
same time, one a Client’s risk and the other a Contractor risk, and the
effects of which impact the critical path at the same time.
Pacing Delays
The Contractor delays the works deliberately due to the Client’s delays in
critical areas. This is useful as a mitigation measure of the Client’s loss
and is made with the purpose of keeping pace with the Client’s revised
schedule.
Book an appointment
* Q13
WHICH DELAY ANALYSIS METHOD IS THE BEST?
A: It depends on where you are in the timeline for execution of the project
and what documentation you have gathered. Separate delay events into
excusable and non-excusable, compensable and non-compensable and then analyse
the data and its effect on the schedule.
We use Impact as Planned Analysis for prospective delays when we are aware
that the project will be delayed and the project is still in execution. We
use this method to commence claiming delay costs early and progressively each
month when we know that (a) the end date has already slipped and (b) the
client has accepted this fact and has revised his overall schedule. We cannot
use this method if the client does not recognise or ignores the delay has
occurred (at least on paper) so we request EoTs and claim against them.
As-Planned vs As-built is the most effective method to substantiate a claim
because we can compare what we planned at the outset vs what occurred during
construction. It leads to robust claims, except that the claim can only be
submitted at the end of the project. It is a great tool for delays that
occurred at the last possible minute but ineffective for projects of long
duration where claims need to be lodged progressively as EoTs and cost
variations with each progress claim.
We view time slice and windows analysis as the only option for a poorly
administered contract. In essence we are presented with schedules that were
delayed by multiple events and since the contractor kept no data for each
delay event, we say ‘in this time-period (the time slice or window), we were
affected by each of these events, we were delayed by so long, and our cost is
$$’.
These claims end up creating a lot of debate as they are argued as a matter
of opinion of the delay experts as to how the site and schedule data needs to
be interpreted. Arbitrators and Judges have a hard time understanding the
arguments from each side and typically, there is no hard evidence to
substantiate the claim. Success depends on expert opinion rather than hard
data.
Even meritorious claims are at times unsuccessful due to the lack of solid
evidence. Statistics prove that less than 20% of these claims are successful.
Yet, given that some of our clients come to us late, well after the delay
events occurred and the data needed is unavailable, we do offer windows
analysis and produce the more robust analyses linked to pricing, manpower,
procurement and equipment.
The collapsed as-built is a complex method, it cannot be used prospectively,
it is therefore rarely used.
Book an appointment
* Q14
BUT MY PLANNER SAYS THAT WINDOWS ANALYSIS IS BEST. IS HE RIGHT?
A: Definitely not. In our experience most planners are accustomed to working
on one piece of software and using one delay analysis method. He who works on
Primavera loathes Ms Project and vice versa, and those who are accustomed to
analysing delays using time slice or windows analysis will not have a bar
when asked to develop an as planned vs as built schedule.
When it comes to windows analysis, the problem is that windows have to be
analysed consecutively, and it is only after a window is cleared and the
corresponding delay established that the next window can be analysed. If you
are not able to supply delay breakdowns, each ‘guessed’ delay in a window
builds up on the errors of the previous one, and the errors are compounded
exponentially by the time you are on the sixth window. Your claim becomes a
(poorly substantiated) global claim. We refuted quite a few when defending,
showing that they had no basis. In simple terms, global claims translate as
‘I did not keep any evidence, but I was delayed and I am losing money, so we
might as well try’... hence the less than 20% success rate.
When it comes to delay analysis we are engineers/planners who first decide
the most appropriate method for presenting our case based on what evidence
you have, and then we engage the appropriate planner with the required skills
to develop a schedule analysis that will present your claim in the best
light. If we have no choice but to present a global claim based on a windows
analysis, rest assured that your chances of success will be much greater than
20%. We will be fair in our assessment of your chances when advising you, we
prefer to not take on commissions where our chances are below 50% unless you
want to use the analysis solely as a negotiating tool, our reputation and
your repeat business is important to us.
Book an appointment
* Q15
HOW IS OUR CLAIM GOING TO BE PRESENTED?
A: We will prepare the normal P3, P6 or Ms Project analysis with 500 to 15000
activities so we can hand it over to an independent expert, but we will also
prepare simple to comprehend graphs which represent the events and data so
that non-experts can comprehend the issues and make informed commercial
decisions:
Book an appointment
* Q16
CLP HAS GREAT BACK-END EXPERIENCE, DO YOU HAVE ANY FRONT-END EXPERIENCE?
A: Absolutely, we produced finance-ready packages for board approval for many
projects, complete with packaging, procurement and contracting strategies.
Below are some of the slides we produced for Iron Road, where we approached
the SA government, Port Authorities, completed a MOU with Thiess and Parsons
Brinkerhoff for the development of the entire project:
Book an appointment
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