Mark Construction Contract Made Easy

Mark construction contract

hello everybody welcome to this month's construction contract administration practice community so Jim over to you Thank You Matthew and welcome everybody to this month's call I'm not sure if Doug Freeman my partner is on the line he has a really busy schedule right now and his job and we've missed him on a lot of these calls recently and hope to have him rejoin us soon I want to also say that we've divided this session into two parts because I want to be sure and take the time that it deserves so we're going to go through claims section today and then next month will go through disputes so that we are able to take questions so let's go ahead Matthew and look at the first slide and first talk about what is a successful project so we can see what is it that we're measuring against well first is that project finished on time and is that project on budget and is that project completed with claims resolved so we're going to touch here on on what a claim is but you know the the process that we go through from a we'll call it a document to an occupiable project it naturally involves modifications we are not perfect as human beings we make mistakes and there are certainly places where things are unforeseen that may occur so you know the whole process as we talked about through this whole series is very much impacted on how well the architect or engineer and the owner and the contractor manage these docks and manage this entire process and how we agree to deal with any kind of item that may be a claim so you see here from the aia documents in the general conditions that many use for this process what actually is a claim well that's a that's a demand or an assertion that one party as a matter of a right payment of some money or some other relief in respect to that contract acts on that right so a claim is well we had an unforeseen circumstance here everyone agrees to that and we should be paid some money and given some time to deal with it so I want you to think about the word claim not as so much a negative because it isn't always a negative it is a right there there are things that centered around that are centered around money where the contractor has that coming so some sometimes we agree to disagree over claims but these are assertions typically by the contractor also can be by the owner to seek some adjustment in the contract price so I'll pause there for a second Doug did you get on the one I did super sorry for joining late but I go now a clever here absolutely absolutely welcome um anything he wanted to add to that slide before we go to the next one it's anonymous let's keep going okay go ahead Matthew let's go to the next slide so I'll just touch on one thing here and then I'll hushing and let Doug speak some this I believe is a quote from Doug which is why I wanted to start with it so this claim is a request that is based on a situation that differs materially from what could have been anticipated so Doug has a way that he describes what our documents are and I love his definition centered around what construction documents are supposed to be and what they're supposed to be used for but let me stop talking for a minute and let Doug talk as Jim mentioned before claims are not necessarily a negative there's probably going to be a claim on every project and if you take claim in terms of what the word means itself is I'm claiming that I'm do something I'm do more time I'm doing more money I'm do whatever and as Jim says it can be from the contractor or from the elder so it's how you deal with claims change orders or claims is how you deal with them that makes the difference and can change a project from a bad experience to a good experience of vice-versa don't try to avoid them don't run from them address them straight on deal with them dealing with them fairly equitably and professionally Jim you were you were going to say something I'm just agreeing with you and that handling these things as expeditiously as possible often keeps them from turning into more than they need to you know Doug has said in the past that that documents are not a set of instructions like an erector set of how to put a building together but are more a general description of an the end result and in that regard there is no perfect set of documents and there are places that will be I guess I could use the word unspecific enough that that maturely you couldn't tell and so that's where claims can originate but Oh Matthew let's go to the next slide and start to talk about where they originate and see if anybody has their hands raised yeah as this slide pops up we did have a couple of questions that came in here so kind of going off of what Dunn was talking about the first question came in from Sarah saying is a claim only made after a product a project completion or could you satisfy a claim with a change order or add service claims can come at any time it's not just up to the project is over so the arc the contractors allocates digital footing and he runs into a sewer line that no one knew was there and the sewer line has to be relocated so that the building go where it needs to go that's an unforeseen condition the contractor has a claim for more time and money to relocate the sewer line and as at the very beginning of the project so they can come at any any course and at any moment during the course of the project what their second part of that question about waiting until the end did I hear that right Matthew yeah it was a scene is that essentially could a change order you know substitute or essentially address a claims you know before the end of the project well the answer that is yes like I said a change order is a claim if a contractor is emitting a proposal requesting a change that's a claim he's claiming that he's entitled to whatever the change order is requested as we all know not all change requests that come from contractors are valid and so not all of them turn into a find executed change order document but the request is to claim the change or is the change request is a claim where the contractors saying I am do something I thought and maybe it's because my hearing is bad that partly a question was waiting till the end of the project and I think Jim would agree is that you should not wait until the end a project to address and deal with the resolve claims you should do it expeditiously as they as they arise memories could still people change locations they all the information that you might need to resolve the claim may not be available if you wait too long yeah so the the part of the question being was could have claimed only happened at the end or could it happen during the middle so that's where you were hearing that we have some additional comments here from Kevin before we have an additional question as well so Kevin just pops in you're seeing change orders and change proposals are not always claims under the contract as ejc DC's see 700 establishes a process for change proposals that is outside the formal claims process a claim in quotes is an escalation a substantive disagreement between the parties and also points out here that contracts typically have a time limit on when claims should be submitted so waiting till the end to file a claim may result in rejection of the claim based on timeliness so two things to think of mine from Kevin and then we had a comment slash question coming in here from Hassan saying in gee max contract based on schematic or bridging documents well the owner refuses to pay for changes in scope of work are not fully delineating in the CD is can this situation be considered a claim Jim I want to try to be brief and that you jump in here real quick I disagree with Kevin and his rare that I disagree with Kevin Kevin's been joining us on these webinars for a long time but I think it's probably just the difference between the AIA language and they I'm drawing a blank on the hundred other documents JCTC the document language a claim from my view is different than a dispute or I think we won't touch on this a little bit later in the in the presentation here and I think what kevin was getting at is that a dispute is a disagreement on a claim basically so from my perspective from leaves consistent with AI documents as the requests for something that you feel you're entitled to is a claim it may not be a dispute it may not rise to a level where you're fighting over it but technically it is a claim and I agree with the other comment that came through about not waiting till the end I don't think well we had briefly touched on that before Jim yeah if thank you if we can if Kevin could be unmuted here for a second maybe he could describe something from what his perspective is about acclaim and I think I think we're agreeing with what he said but maybe calling it something different yeah so Kevin if he added in a comment here and Kevin please let me know if you want me to unmute your line as well but he said that the reason the EJ CDC provisions is that contractors often object to the stigma of a claim as sometimes statements often ask how many claims do you have on file for your project but Kevin says sure to unmute so Kevin let's see here I have unmuted your line so Kevin if you wanted to join in feel free hello folks and I think it's something of a matter of terminology but I just in my own experience I don't see too many project teams whether using the aia documents for the older editions of ej cdc which had a very similar claims process i don't see too many project teams that actually follow those or even enforce them or half the time even seem to be aware of them there's often a desire to just amicably negotiate changes in the project as we go along and maybe not call them claims or whatever and you know not to belabor the point I understand what Doug is saying and you just I just wanted to throw out there that a claim has a defined term in the general conditions is certainly a an important matter EJ CDC took this different approach with its general conditions five years ago simply because the contractor sitting at the table and providing input said we don't like to have the stigma of having to file a claim every time there's a differing site condition it makes us look bad that we're you know filing claims all the time even if it's not our fault so you know that's why one of the reasons why EJ CDC went to oh I guess a lower level process of the change proposal and the claim is a more substantive disagreement that might arise out of a failure of the parties to agree upon the change order so just again without without flavoring and thanks for giving the opportunity to talk absolutely Kevin thank you man and I and so this this is this is inherent and important in our business that for whatever reasons you know we do look at the word claim as a negative and it's a huge change I guess in culture to try to start to talk about it in something otherwise and I agree with what you said and I know Doug does too about how claims are viewed we both have either worked for or competed against firms that would say that they had one change order on the job when in fact that one change order had 35 different items compiled up into it and they would use that as a moniker to say you know we only had only had this one claim on the job and they wouldn't use the word claim again because of exactly what Kevin said it had this negative connotation and and so to address also what Sarah was saying that the way to the end many firms tend to try to do that and and that way they can say they only had one change order on the project so Doug stop me here if you want to add any further to that or we'll just begin to talk about where these originate let's keep going I think girl every night I learned to just we wanted to circle back to Hassan's question as well they came in after Kevin's comment so reminder Hassan's question was in a contract based on schematic and bridging documents when the owner refuses to pay for changes in scopes of work or not fully delineating the CD is can that situation be considered a claim oh you go ahead first if I'm following the question right I would say yes that is a claim the contractor has run into a situation where he feels he's entitled to additional money and the owner has refused to pay for it that's a claim the contractor is saying I'm due money that's the claim and when when the owner goes in the next episode I'm not paid yes and that's when it becomes a dispute Jim and I think yes I think the term claim does apply to the example you gave as as defined in these previous slides where there may be a variation in a document that is materially different and it could be defined as a claim and perhaps we'll come across a more detailed answer as we're looking here at where they originate so imagine if you'll if you'll see if that question comes in again we'll come back to that and if we didn't respond sufficiently there so so these claims that we're talking about can come from the contractor or subcontractors or suppliers that are feeding material through them they can be followed by the owner against the contractor or they may be filed by others that aren't even a party to the contract so we'll take a look at these in a little more detail Matthew let's look at the contractor slide the next one and so where might contractor claims originate well the project pricing or the cost is based on what we would call procurement or contract documents and everything that can be reasonably foreseen at that time related to the project and as we discuss conditions can change and whatever those changes are must be clearly documented and given to the contractor in a timely manner so that then the responses as we're at Doug and our defining claims may be through these kinds of examples that you see on the right of the screen there may be some interference we've all had perhaps projects where floor plans change from time to time to time to time and so that would be a claim from the contractor based on what was in existence when the original pricing was provided there may be conditions beyond everyone's control such as weather I I can't imagine what the claims process might be like right now on the northeastern part of the United States if there's anybody that's on the phone that is in that area I'd be curious to know how your projects are doing if you'd be willing to offer it unforeseen conditions things that are underground that we can't see or perhaps modifications that are made during the process of a job that there's a change in use or the owners idea of a different service to provide and then of course there are things that are might be errors or omissions that the architecture engineer left out of their documents in the beginning so these are examples of where the contractor might be submitting claims for a project Doug or Matthew any questions or follow-up for me we did have one question that came in here are there potential for claims on manager at risk contract in the eff parentheses there the partner contract that's a good question I I don't know I'm not Samiha with the term manager at risk we're talking about value CM construction manager at risk but I think that's what they mean Doug I think that's my question it's a good question I that's a good question is when you work even if it says at risk contract if you're running into unforeseen conditions that's something that nobody anticipated that's going to be a claim that I would think the chiropractors entitled to pursue I think it's one of those questions that starts off with it depends also you know what what kind of analysis was required or a part of the contract when they assume that risk as Doug just to find you know if it's it's its site and there were no soil borings and maybe that is that that proposal was submitted as classified and so they don't undertake that part within the risk other weather issues with with storm coming through or a lightning strike in a fire or right thank you let's take a look at the next slide unless there are others and talk about where owner claims may originate perhaps these would be based in defective or non-conforming work that affected the the project itself or the schedule of the project maybe there are damages of existing property if it's a renovation or an addition where existing property has been affected negatively perhaps there are liquidated or compensatory damages related to the type of project you're working on retail centers that miss their biggest sales market of the year for example and then there are a long list here that you see of perhaps ineffective project management and you notice that it doesn't say owner claims just against the contractor but that these could be related to shop drawing issues or reviews multiple substitutions of various makes and models of different products perhaps interference with their operations if in fact as the example of a renovation or addition may impact the existing facility or perhaps the designers are asking for additional compensation because of site visits because of a late project delivery schedule overruns etc so these are not meant to be exhaustive list but just examples of where an owner may make some claims on a project and uh again Dougy if you have anything to add here in Matthew Thor any questions let us know or in the absence of either one we'll go to the next slide Matthew if we don't have any questions and this proceeded on and uh so we spoke a little bit about potentially parties that have nothing to do with the contract being involved in claims one which you see here might be adjacent property owners who are affected by negatively by something that's going on at the job site we here in Raleigh North Carolina recently had a large fire at a project that was under construction which damaged all of the perimeter buildings around the site that were either apartments or condos to the point that they had to empty the structures of because of the damage so those people certainly weren't a party to the contract but they certainly had claims against the project site owners and contractors also there may be an impact by adjacent property owners because of damage that may be not apparent right away but happens over time I guess we've all read about the Millennial tower in California that may be settling maybe not be settling because of work that's going on adjacent to the property and of course there may be an issue of death or injury related to a party and you know the the bridge at the University in Florida is an example of how some third party claims will have to be dealt with in that failure so it's not always someone that's directly related to the contract that may have claims on a project I'm Doug you have any comments or Matthew any questions only comment I would sear at this point is typically in the contract there our procedures set up for dealing with claims then just play out here these third parties that are not a party to the contract are not held to those same requirements they're in the contracts when it comes to claims you could have a claim for a contract between an owner and the contractor this is everything is going to go to arbitration the third party it's not party to that agreement does not have to stick to that arbitration clause so they can pursue a direct action through the course without having to go through arbitration so just remember that when you're dealing with third party claims that the procedures for resolving them don't necessarily have to follow the procedures that you set up in your contract that's a great point machan any questions at this point yeah we have that two questions that kind of came in here one of them I'm not sure if you want to address now or maybe later in the call but in a project delivery methods such as IP B or the architect owner and contractor have shared risk how our claims or disputes resolved at that point typically in those types of projects integrated delivery projects they are procedures and processes within the contract to deal with how to handle claims just because everybody's finding the same contract does not mean that they're going to agree throughout the course of the project and what I think I've seen most often in those types of contracts is that there's usually a panel or some kind of a mediation or arbitration agreement where the party is allowed to sit down in good faith and try to negotiate through any disagreements at the half Jim that's what I was going to say good exactly.the those my experience is that there is a claims dispute committee that is agreed upon prior to the integrated project delivery process and and if it's possible and most times it is and they would help arbitrate or mediate that that solution that's been my experience - maybe what was the next question yeah we had Kevin also wanted to disjoin that on that say most contracts regardless of the project delivery method includes some provisions governing the claims of disputes but it's tough to answer how claims are handled in IPV because there are different colors and approaches taking to implementing the FTD process but we have another question that came in here from Joseph saying could you speak to the architects ability to file claims with the owner and how the b101 / - oh one what constitutes an ad service and how to go about requesting this from an owner the contractor has a means of requesting change orders and it does not seem to have the same stigma as an ad service does to architects I all starts by saying I am excited you asked the question because it I think often we don't as you described where it seems like there's a stigma related to anything that we look for in additional fees that isn't necessarily or may not necessarily be tied to the same kind of reaction from a change order proposal I'm not I'll also say that I'm my overall answer is I'm just not sure I think I feel like personally is something that we have done to ourselves just and historically over time been timid or shy about documenting what is an additional service I've had the good fortune to work in some large engineering small architecture firms and as a shout out to any engineering friends that might be on the phone I will say that they have this well-defined if you have a project work plan and you have the project scope as many of my engineering friends did where they tell you how many hours per sheet it's going to take them to produce a document they stick very stringently to those totals and they share those with their clients and I'm talking about firms that I worked in and then it became I guess let me start over slightly by saying when we have a well-defined scope of service upon which we base our contract it is much easier to approach an owner to say well here's something that is outside the scope some of the AIA contracts are fill in the blank types that force us a little bit to go through and define exactly what our scope of service is and I know at the time that those contracts are being developed the intention was a little bit to force us to sit down and do that very thing so that our clients knew for example yes these large drawings that we're going to do to help do fundraising for the project are included but if you want others in the future they are not so that we would be asking for more money for different perspectives or larger details or whatever the case may be so yeah I think part of what we need to do as practitioners is to focus on the development of that scope of work because then we are able to say what isn't I hope that makes sense and then I'll start one more go ahead Rick I agree with you hundred percent you have to have a well-defined scope and one sort of scope is well defined it's so much easier when something comes up this outside that scope to identify this as an additional service the other thing I was raised I think hey documents make it fairly easy and quick for an additional services claim to be processed it's the one-page additional services form where the architect posts how fills out these typical project information and identifies what the additional services what the fee will be and it's a one-pager you can attach documents if you need to and then you sign it and the honor size it and I often have heard the excuse that it's going slow down the project we can't wait for an additional services do the work and then you do the work and then the owner says well I'm not paying it I've always said don't turn over the goods until you've come to that agreement that you're going to get paid for you could go ahead and start preparing whatever the additional services documents are but I would not release them until your owners acknowledge that yet is just additional services and I'm going to pay for it and it's all he's got to do is sign a document you've already prepared it for them you get it in front of him it takes but seconds to sign your name to it so I've seen too often times and the course of my career where is clearly an adjustment service where the owner even admits isn't additional service and architects perform the service delivered the documents the work gets done and an owner denies payment and at that point you got to making a business decision is it worth it for me to risk my relationship with this owner or risk my reputation by filing a lawsuit against him so it's so much easier what to get all that settled upfront don't give the goods until you have that agreement Jim I cut you off yes no no that that's that was good I I think Matthew unless we have any more questions we maybe should start to talk about the next couple of slides which are critical steps and and how all claims are dealt with mean questions no other questions as we have some comments that came in hearing and reading quick while the slide switch is over just saying professional service contracts almost always have a list to find a more informal process for claims half the time the parties to the professional service contract don't even know the full nature of the situation causing the claim when one party often the owner files a claim against the other often the claims in dispute process is a professional services contract and sorry often the claims and disputes process are in a professional services and mingle together and often the parties will resort in private mitigation are starting mediation to resolve the claims under professional services contract and they know we talk about mediation in a few slides so I just wanted to add that in there but feel free to move on to the critical steps okay well it's a great great segue into you know the our documents in the standard general conditions provide for the mechanics of seeking relief for claims and in those documents it reserves of course the rights of all the parties and as Doug was describing the the owner and the contractor under the legal concept of privity of contract may make claims against each other in other words the subcontractors have to go through the general contractor if they have claims but of course this doesn't apply to a third party that isn't contracted with any of the parties related to the project whatever the steps are and whatever the process is Doug points this out all the time and we both do in these conversations handling things in a timely manner and being effective being fair and impartial in whatever this methodology is related to the claim is critical it will not get better with time these claims are not like a fine one you don't need to let them breathe you need to undertake the solutions and move followers of that and so we'll well let's go to the next slide which are also a part of the critical steps especially when these claims involve money and and often they do and sometimes it's large sums of money then as we're going through the process it can't be set enough to document what's going on to document beginning middle and throughout the process so if it's a contractor claim then they're responsible for documenting what the subject of the claim is if it wasn't foreseeable at the time of pricing that's what they've got to do if it's a non performance issue then that's got to be explicitly documented so look to your partner the contractor to provide you all the detail you need it's not just simply a statement bad soil three hundred thousand dollars there's a lot more information that you need to have in order to assess or make a comment about a claim if it's an owner claim then it could be that if their contract says so that it may be grounds for withholding payment so again same type of documentation it's got to be explicitly described and anything we're evolving with holman of payment should be a very last resort so dealing with the claims through the documentation process is absolutely paramount in managing your project and we're going to on the next slide start to talk about the submission of a claim Matthew we can go to that one or take some questions Kim I just want to jump in on absolutely no you're fine about subcontractors finally they claim through the general contractor and that is the general rule it's standard contract law there are some jurisdictions and North Carolina is one of them where there have been case law that has been passed that will allow in certain cases the subcontractor of the supplier to go bring a claim directly against the owner without having to go through the general so I just wanted to point that out and you need to be aware of what those rules are in your particular jurisdiction that's a great point yes absolutely yeah we we have some funny case law and some things like that and I imagine there are a lot of places that may have similar gotchas that you weren't thinking about or didn't see in your document um so let's Matthew were there any questions before we go any further no not at the moment okay so wait go back morning sorry about that so the are our documents again establish a process and our procedure often they set the architecture engineer as the impartial interpreter of the documents if eclis says this unless perhaps you change that in your documents also establishes us as the initial decision maker so this begins to establish the steps the the procedure that would be adhere to in the submission of a claim the EJ CDC documents say that that will be that the claim will be or the documents of the claim will be submitted to the engineer there's required notifications of parties time limits for those submissions we're talking about something that's critical to the management of the project and there have been some previous comments Sarah I think it was talked about waiting until the end to submit claims and it as we said is always good to submit them as they occur most of our contract documents require that they get submitted when they occur and there's a time limit for that submission and yet still on so many projects we get to the end I think there's a Doug made a comment about people getting forgetful and moving on from one company to another memories are bad there often are claims at the end that happens so long ago and you know should we can we do we process them undertake the consideration of them and the answer most often is yeah we do as Doug said with it's about a client relationship contractor relationship if you do a lot of work in your state the construction community gets very small and reputations spread very wide so often we find ourselves in a predicament of undertaking reviews of things that perhaps we shouldn't and most definitely are in our contract documents that say we don't have to so those are determinations that you are going to make as a practitioner about what you are willing to do so you know delaying of those submissions is just not something that should happen and both Doug and I have used documents in construction administration where we try to establish ways where we reminded folks of those time limits well we are at a certain point and we're not going to accept anymore after today's meeting but whatever is submitted it should include everything if it's money okay we need to know how much if it's time same thing we need to know how much and once all that documentation is pulled together in total then the whichever party is doing so can submit that claim so Matthew unless there's a question let's look at the next page yeah we actually have a bunch of stuff that came in here so just one of the heads up since 2013 the EJ CVC Doc's do not have the engineer in the claims process rather likely could rather like a design-build contract the EC EJ CVCC 700s claims process requires that the owner and contractor negotiate claims in good faith parties may resort in mediation during such that such a negotiation heads up on that additional comments to keep me here is in my experience because owners and contractors are often afraid to lawyer up and go to arbitration or court after the IBM's decision sorry decision on the claim is issued they wind up sitting down to negotiate it anyway I rarely see owners and contractors accepting the IBM's decision and yet also being reluctant to go to mediation or arbitration and often architects are just needed as initial decision-maker disputes often occur when the initial decision-maker refuses to accept those errors and admissions and the Seavey's does this lead to disputes with the mediation arbitration or lawsuits can you read the question again yeah sorry I was I didn't notice it was a question until the very end because didn't end in a question mark so often architects are designated as initial decision maker Ibis Puetz often end when the initial decision maker refuses to accept errors or omissions and the Seavey's does this lead to disputes with mediation arbitration or lawsuits okay let me take a stab at that if the initial decision maker is the architect and a contractor submitted a claim because of an error in the documents and the initial decision maker is trying to cover his rear end and denies the claim or doesn't acknowledge it or whatever yes that could lead to taking it to the next step and I think that's that's spelled on an AI documents is that the initial decision maker once he makes this in this decision that the parties the owner and the contractor can if they don't agree take it to the next step be it mediation or arbitration depending on how you've got your contract set up so yes that can happen if the initial the initial decision maker just ignores it and doesn't want to deal with it at all then again the owner of the car character based on the documents can take it to the next step Fiat mediation arbitration or litigation again depending on the terms of your contract okay we had additional question coming in here from James asking in front of a dispute review board who represents the owners claim the engineer question mark in reference to the EJ CVC go ahead well I was just going to say that would I guess again I don't mean to be evasive but it would depend on the documents related to that individual project it may be that the I would assume most owners would have an attorney representing them in a dispute situation like that perhaps or it would just be the owner representing themselves in that situation but I don't know Doug I'll hush well I was going to say the same thing it might depend on the situation I could see a situation where it may be that the design professional is representing the owner but I would think if there I was an owner and I was going before a board I wouldn't want somebody with some type of legal experience representing me and would be relying on my design professional for their professional expertise and their professional opinions but in terms of the proceedings I would want a expert in that area and flip on an attorney to represent me yeah I was just going Kevin agreed here but pointed out in the case of BJ cdc's they do not have provisions for a dispute Review Board so keep that in mind as well well Matthew let's take a look at the next slide so the next two slides we'll talk about here are related to the processing of the claim and the third slide is a document right out of the practice guide that I think is really handy to see the connection between the various parties of a claim and what happens when things go smoothly and how things get redirected if if there are some roadblocks in the process so this processing of course revolves around the word entitlement and I've heard Doug in various places throughout the practice guide talk about and these webinars talk about entitlement of course that's the right to benefits and that as Doug said a second ago it depends on where you're practicing so it's important to know what the law is there and how the contract that you're using is worded to fit within that law of where you're doing your work so the contractors entitlement is established by deciding whether or not that work is in the original contract documents is it reasonably inferred there's a decision to make there yes there's enough information or no there's not and if there isn't then this might be a valid claim so we're moving to the second step so let's say yes it wasn't reasonably inferable and the claim is valid then is the timing appropriate was it submitted when he should be and certainly was as submitted before the work is accomplished that giving the owner the opportunity to consider other options and so then if we're not answering those things well yes all that was done properly then it might be an invalid claim I know Doug has and I have to work on projects that where things were done and finished before a claim was reviewed and processed and agreed upon and that's a that's not a predicament you want to put yourself in so those are those are points about contractors entitlement but the owner may also have entitlement and it follows the same course of action is it actually is it entitlement was this work that the owner is making a claim about was it reasonably inferred in the contract documents or not and these things should be determined and decided upon as you move forward in the process no because if it's not then the owners claim could be upheld to receive work at no additional cost if in fact that was that was decided that no this claim is not valid that work is is reasonably inferred and so no there will be no additional cost well let's go to the next slide all this is all part of the same explanation Matthew and then we'll take questions because we might have a minute to do that right at the end so if you'll look at the next slide if the intent that's right if entitlement is established and how is that procedure implemented well again it's all about documentation and whether it's substantially documented so that we can understand the claim we've got to review it is we've talked about it being submitted in a timely fashion now we've got to review it and make a judgment is it accepted or denied we of course need to go through the process of confirming it's all based on our contract is that a lump sum price of their unit prices if their schedule involved we need to review that and either accept or deny that it did have implications or it didn't are there outside agencies that are involved and if so have we got that information together so if it's rock and rock was removed then was it quantified properly by independent parties were there any site observations to document that that need to be wrapped into the review of the claim once all that is together and we've had a chance to review as engineers or architects then we can render a decision which should be thoughtful should be impartial and should be in writing so that everyone can understand our review and that's the processing of the claim everyone can mutually agree to waive requirements and we and there was a question that touched on this a comment sorry that touched on this and man together all parties mutually agree that we're not going to do that then we might just sit down and negotiate and compromise on the settles on a settlement or a solution that is agreeable to everyone well sometimes that happens and sometimes it doesn't but again the any of our actions that we take should be based on reasonable expectations and done in a professional ethical and fair manner so that's a quick review of processing of claims and Doug I'd like for you to add to any of those before we ask for any questions and then we'll we'll close with the questions we're getting low on time I really don't have anything to add as this next slide pops up it is a good representation of the process if you don't have the manual you can refer to it here in this line but I think it's it's does a good job of outlining that - process so Matthew do we have any questions yeah we had one question which came in here what's your experience rejecting the claim based on procedural grounds such as that I was not submitted in the timely manner I have done it before typically what I will do if I don't if it's a rate claim but it's a very claim I mean you got to kind of look at the totality of the circumstances I have done it before but there are some times where I playing this come in late and I've discussed it with the owner and then owners made this is me I'm going to go ahead and even though he's late we're gonna go through the process anyway so how it typically would not just deny it and send it back without first is because they let the owner but I've done it before and I'm certainly seen insurance companies come back and then denied claims because they weren't submitted in a timely manner I want to comment on that too Matthew I I had the same same response that Doug did and typically the owners want to work with the construction community particularly public agencies because they're going to see them again I'll also say I've had a situation where something was submitted after the contractor received final payment for the project and it just discovered that they hadn't billed for something that in fact everyone had agreed to as an additional cost and everyone had agreed was was not a part of the contract documents and for a state agency unfortunately there was nothing anybody could do the contractor could not be paid because the contract was formally closed and they were willing to chalk that up to a hard lesson learned and all of us that were involved with that job you know just could only admonish ourselves and look back to everything we've just talked about here today as a way that we should operate to be sure that that doesn't happen and that's why it says don't do the work before you know the the formal process has been undertaken any other questions nope Kevin just closes out with those usual jokey sell saying so much for that final waiver of claims clause yeah exactly I know it was crazy anyway well I'll let Doug had the last word I appreciate everyone being here and we're going to talk about the process of managing disputes and in the next session which goes along with this session of claims Doug I'll turn it over to you glad to have you here man thank you thanks everybody for for joining in and we'll have you back next month as we talk about resolving claims after you want to take at home all right perfect well current schedule has us probably meeting on April 24th for our next meeting so everybody put that on your calendar now information on the meeting and the registration link will be on the website and in emails in the next couple of weeks reminder to everybody again today's session was recorded that recording will be posted on to the CSA YouTube channel in a few days after we clean up some of the housekeeping stuff that isn't relevant to a recorded session and get that encoded and uploaded lastly reminder following today's session you should receive an email from GoToWebinar with what time we are right now looks like it'll come in probably about to 10:00 Eastern to your inbox it's automated from GoToWebinar that I'll include a link to downloading today's slides as well as a link to a survey if you wish to share some information there additional questions on today's call topics for future sessions you know for us to talk about and again to request that self reporting certificate of attendance that you can use for letting individuals know that you attended today's session so with that I do want to thank everybody for coming and thank you for seeing a few minutes after the hour thank you again to Jim and Doug as you always do a great job on these sessions and we look forward to seeing you next month thanks everyone have a good day