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Institute of Construction Claims PractitionersConstruction Lawyers Brisbane-QBCC Registered Adjudicator

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QLD's #1 QBCC Adjudication & Security Of Payments Specialist

Construction Lawyers Brisbane

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. Our clients choose our services because of our first-hand construction expertise as engineers, quantity surveyors, and contract managers (we are MCIBSE, C Eng, MRICS, MAIPM). We are also QBCC Adjudicators and regularly represent clients in disputes under the Building Industry Fairness (Security of Payment) Act - you can count on our extensive knowledge of the law. These credentials guarantee that we will fully understand your situation, develop your cost or delay claim in-house, and select the most appropriate legal approach and strategy to deliver results quickly and efficiently.

We Are Dual Qualified Engineers & Lawyers

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RICS
CIBSE
Construction Lawyers Brisbane-QBCC Registered Adjudicator

Why nominate us for your Legal Engineering Needs?

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.

With 30 years of experience participating in design engineering teams and on-site construction (for leading companies CPB, CIMIC, Lend Lease, AECOM, Fluor, Nova, Parsons, WSP, High Commission for KSA), we guarantee our complete understanding of the issues that arise on construction sites and understand the perspectives of all participants and stakeholders involved in a building 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 legal costs and the time it takes to resolve your dispute.
  2. Regulated by RICS: We do not need to engage 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 specialised offering consists of:
Contract review and formation services, PD strategy and administration 
Planning, Scheduling, EoT, Prolongation, Disruption and Acceleration Claims
Payment Claims and Schedules - QBCC Adjudication Applications & Responses
Dispute management: Expert determination, arbitration and litigation

What our clients say about us

“I am extremely grateful
for your professional assistance in this matter. Four different law firms and no one has taught us about these procedures before, thank you.”

Jessica Dale,
Superior Kerb & Concreting

“They had a building full of lawyers against the two of us. We would not have prevailed without your technical and construction knowledge.”

Dr Armond Habibi
General Counsel

“I thought I was losing my business... thank you.”

Ben Hunter,
Bear Claw Civil

We can assist you with

Contract Reviews and Contract Analysis

Contract Reviews and
Contract Analysis

With our extensive engineering expertise and on-site construction experience, we possess the ability to interpret, analyse, and offer contract recommendations in various domains such as rights, liabilities, duties, and scope, specifically tailored to Australian Standard Contracts (AS4000 and AS2124 Series), Australian Building Industry Contracts (ABIC), Master Builders Association (MBA), Security of Payments Act compliance, as well as FIDIC, JCT, and NEC4 standard contracts.

Our services encompass conducting pre-contract audits to identify standard terms and conditions and propose amendments that effectively transfer or reassign high or unnecessary risks.

We understand that a well-crafted contract plays a pivotal role in risk mitigation. Prior to your agreement and signature, we ensure that it aligns with your best interests and that you possess a comprehensive understanding of the associated exposure.

BIFA, QBCC Adjudication  Dispute Management

BIFA, QBCC Adjudication 
Dispute Management

We conduct comprehensive contract analyses to identify and evaluate the key terms and conditions within the contract. In this process, we thoroughly review the drawings, technical specifications, and site records to ascertain the cause, effect, and merit of any claim.

Our written claims are meticulously crafted, employing clear and concise narratives in plain English. They include relevant cost and CPM (Critical Path Method) delay analyses, accompanied by referenced evidence files for substantiation.

Before proceeding with referring the matter to QBCC (Queensland Building and Construction Commission) adjudication, we carefully assess the necessity of affidavits and expert reports. This ensures that our claims are robust and capable of withstanding rigorous scrutiny.

With extensive experience in representing our clients in both formal and informal dispute proceedings, we are adept at briefing counsels and barristers on your behalf.

Throughout the legal process, we will serve as your guide, offering expert guidance and support. Our ultimate objective is to work diligently towards a swift resolution of your dispute, aiming to minimize the duration of the proceedings.

Delay, Disruption, Acceleration  Critical Path Delay Analysis

Claims for Delay, Disruption, Acceleration And Critical Path Analysis

As part of our comprehensive range of services, we offer in-house planning and scheduling expertise. In situations where delays occur, we conduct a thorough analysis of the baseline schedule and progress updates. This analysis allows us to develop prospective and retrospective windows and perform time-impact analyses to assess the impact of the delays.

Our team is skilled in determining the causes of delays, including concurrent delays, as well as apportionment of responsibility and liability. To accurately quantify disruption claims, we utilize various methodologies such as earned value or measured mile methods to calculate labour and productivity rates. This enables us to determine the precise extent of the disruption claims.

Our claim documents are meticulously prepared, presenting delay and disruption data in a detailed and auditable format, ensuring transparency and accuracy.

Additionally, we specialize in preparing acceleration claims, evaluating their merit, quantum, and entitlement to an Extension of Time (EoT) claim. Furthermore, we provide Third Party Independent Reports to assist our clients in gaining a thorough understanding of the strengths and weaknesses of their position in the dispute.

Contract Management and Financial Recovery

Contract Management and Financial Recovery 

It is widely recognized that incomplete project planning, inadequate schedule tracking, and poor contract and financial control are often at the root of troubled projects plagued by delays and cost overruns.

At our firm, we leverage the collective expertise of our legal, engineering, planning, and quantity surveying teams to assist our clients in developing comprehensive project development procurement and contracting strategies. By addressing these critical areas, we significantly reduce project risks. We take charge of managing the resolution of claims independently, allowing the Contracts Management and Construction Teams to focus on their primary objective of project delivery.

This approach offers several advantages, including a positive cash flow right from the start and reduced overall project administration expenditure. Our team of lawyers are construction experts in their own right, enabling us to swiftly comprehend and effectively communicate any cost, schedule, or scope issues internally with the Project Team and to the Client. This ensures that no time is wasted in understanding and addressing the key concerns that may arise during the project.

Project Development Strategies International Experience

Project Development Strategies
International Experience

We specialize in helping developers identify suitable partners, leading to the formation of successful joint ventures through teaming agreements. We understand the importance of finding the right collaborators to achieve project success.

Furthermore, we have a proven track record of preparing winning proposals and developing economic cases required by Financial Institutions. Our expertise in this area has enabled our clients to secure financing for their projects, both in Australia and overseas. From the early stages of desktop studies to the preparation of Preliminary Financial Studies (PFS) and Feasibility Studies (FS), we assist our clients in selecting the appropriate project structure and contract type, such as Design & Construct (D&C), Engineering, Procurement, and Construction (EPC), Engineering, Procurement, and Construction Management (EPCM), Turnkey, and more.

We actively participate in the Engineering, Procurement, and Construction Installation (ECI) phase, if necessary, and facilitate the acquisition of planning and authority approvals. We also provide support in preparing essential legal documents, including Teaming Agreements, Non-Disclosure Agreements (NDAs), Expressions of Interest (EOIs), Requests for Tender (RFTs), as well as drafting various contracts, such as head contracts, subcontracts, consulting contracts, and supplier agreements.

Insurance claims

Insurance claims

Fast-track projects often result in a significant number of defects, some of which may be deeply rooted underground, making rectification extremely challenging.

In such cases, we offer a comprehensive range of technical and legal advice to address both rectifiable and un-rectifiable defects. Our expertise extends to providing guidance on insurance matters, including options such as owner or contractor self-insurance, as well as decennial insurance.

Our team has vast experience in handling major insurance claims and advising clients who opt for self-insurance, including government bodies and statutory authorities. We have developed a diverse skill set that encompasses all aspects of insurance advice and insurance claims management.

Our services cover policy interpretation and drafting, advising on policy-related matters, indemnity and subrogation issues, conducting recovery actions, and representing clients in front of insurers. We assist in navigating complex insurance procedures to ensure our clients' interests are protected and their claims are appropriately managed.

Our specialised 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 modularization, 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 QBCC adjudication process.
CCPM Delay Analysis

We Act in the following Industry Sectors

Road Bridges Overpasses & Detours

Infrastructure, Roads, Bridges

We have extensive experience in handling Professional Indemnity (PI) claims related to design errors, omissions, and lack of coordination. Our team is well-versed in assessing and managing claims arising from latent conditions, unforeseen utilities, additional detours, Extension of Time (EoT) claims, disruption, and constructive acceleration.

In addition to handling claims, we offer Contract Administration services to our clients. This includes reviewing, negotiating, and effectively closing out outstanding subcontractor and Head Contract variations. Our team ensures that all contract administration tasks are carried out diligently, in compliance with contractual obligations, and in the best interests of our clients.

By combining our legal and engineering expertise, we are able to provide comprehensive support throughout the claims process and contract administration, offering effective solutions and advocating for our client's interests.

Electrical Windfarms & Solar

Electrical, Windfarms, & Solar

We are proud to have a Principal based in Brisbane who is an experienced Electrical Engineer. With their expertise, we offer strategic engineering advice to assist our clients in meeting the requirements set by the Australian Energy Market Operator (AEMO). This includes providing technical analysis such as load flow and harmonics analysis to establish the technical case.

Our team is also skilled in preparing Delay and Disruption claims, as well as Liquidated Damages claims. We understand the complexities involved in quantifying and presenting these claims to seek compensation for project delays and disruptions.

Furthermore, we have successfully handled disputes related to the cashing in of bank guarantees due to late performance, the treatment of Force Majeure events, and establishing entitlements for delay compensation. Our experience extends to managing extensive arbitration proceedings, where we advocate for our clients and protect their interests.

With our deep understanding of engineering, construction, and legal aspects, we are well-equipped to provide comprehensive support throughout the entire process, ensuring our clients have robust technical arguments, well-prepared claims, and effective representation in dispute resolution proceedings.

Process Plants

Process Plants

We were engaged to provide Contract Management Services for a contractor involved in the development of a bottling plant and office facilities project. This project encompassed various components, including water treatment plants for both drinking and waste water, bottling plant equipment, and the storage and management of raw materials and finished products. Additionally, we oversaw the installation of conveyors for transporting the finished products to the truck bay.

We also had the opportunity to work with a major Australian biscuit manufacturer on a project involving the construction of a distribution plant. This facility included storage conveyors and systems for product distribution to truck loading areas.

In both cases, our Contract Management Services ensured effective management and coordination of the projects, overseeing contractual obligations, monitoring progress, and facilitating communication between all stakeholders involved. Our expertise in contract administration and project management contributed to the successful delivery of these complex facilities within the agreed timelines and specifications

Mining

Mining

We have provided valuable assistance to clients in forming Joint Venture agreements to undertake feasibility studies of bankable quality. Our expertise extends to supporting the development of Engineering, Procurement, Construction, and Installation (ECI) strategies, as well as creating an overall project delivery strategy.

As part of our services, we draft Memorandums of Understanding (MOUs) between the various members of the Joint Venture. We also assist in the separation of scope and the delineation of battery limits for each member, ensuring clear responsibilities and boundaries.

In addition, we prepare procurement and transportation contracts for the sourcing of overseas equipment and modules. We handle the logistics, arranging freight and transportation to the project site. We also provide guidance on suitable insurance to mitigate risks during transportation and installation.

Our comprehensive approach ensures that all necessary contracts and agreements are in place, covering various aspects of the project from equipment procurement to transportation logistics. This allows our clients to navigate these complex processes smoothly and efficiently, reducing risks and ensuring a successful project delivery.

Office Buildings

Office Buildings

With over 20 years of experience in the industry, we have a strong track record of developing landmark buildings that have become iconic in their respective locations. Our portfolio includes notable projects such as the Star City Casino, which features a combination of facilities including a carpark, offices, hotel and apartment towers, as well as the Lyric and Show Theatres. We have also contributed to the construction of the Chifley Tower building, the Manly RSL Club pool complex, Cronulla Shark’s Stadium, and various residential estates.

Our specialization lies in Mechanical, Electrical, and Plumbing (MEP) systems, and we have extensive expertise in managing MEP claims. We are well-versed in handling complex claims related to MEP systems, ensuring that our client's interests are protected and appropriate compensation is sought when necessary.

Through our years of experience and successful project delivery, we have established a reputation for delivering high-quality developments and resolving claims in a professional and effective manner. Our commitment to excellence and our specialization in MEP and F (Financial) claims enables us to provide valuable insights and support to clients in the construction industry.

Oil & Gas

Oil & Gas

We have extensive experience in providing our services for a range of projects in the oil and gas industry. Our involvement spans offshore oil and gas production platforms, subsea pipelines, and onshore gas-conversion refinery projects.

Our expertise extends to various components of these projects, including fuel gas areas, pump houses, Steam Turbine Generators (STG) areas, and Power Plants. We are well-versed in the design, construction, and management of gas wellhead skids, crude units, fluid catalytic crackers, light products plants, polymerization plants, amine plants, sulphur plants, and impurities treatment plants.

Our team understands the complex requirements and standards specific to the oil and gas industry. We are equipped to provide comprehensive engineering, project management, and contract administration services to ensure the successful execution of these projects. Whether it is offshore platforms, subsea pipelines, or onshore facilities, we have the knowledge and expertise to support our clients in achieving their project goals in the oil and gas sector.

Civil

Civil

We have extensive experience in preparing claims for a variety of issues encountered during construction projects. This includes claims related to unsuitable ground conditions, latent conditions, unforeseen utilities, as well as issues such as cracks and tears on the surface layer and slippage of asphalt due to incorrect sub-base or compaction.

Additionally, we have expertise in handling claims for wrongful termination of contracts, which may arise due to various reasons such as uninducted and unlicensed personnel, use of incorrect and unapproved equipment, or other contractual breaches.

Furthermore, we are well-versed in defending against unmeritorious claims, ensuring that our client's interests are protected and baseless claims are properly addressed.

Our team is skilled in preparing comprehensive claim documents, gathering evidence, and utilizing our legal and technical expertise to support our client's cases. We strive to maximize our clients' entitlements and effectively navigate the claims process, providing strong defence or prosecution as required.

Heavy Rail, Metro, & Light Rail

We have vast experience in a wide range of infrastructure projects, including coal and iron ore loaders and unloaders, transport systems, and port storage facilities. Our expertise extends to assisting clients with the development and negotiation of transport and port storage agreements, ensuring that their interests are protected and the projects are successfully executed.

In addition, we have worked on projects involving Tunnel Ventilation Monitoring (TVM) systems, including tunnelling projects with underground and overhead tracks, as well as the construction of underground, on-ground, and elevated stations. These projects often encompass various components such as retail sections, maintenance facilities, ticketing systems, and operations and maintenance contracts. We are well-versed in handling the complexities involved in the integration of these components, ensuring seamless operations and efficient project delivery.

Moreover, our services include assisting clients with obtaining the necessary authority approvals required for their projects. We navigate the regulatory processes, liaise with relevant authorities, and facilitate the successful acquisition of the required permits and licenses.

Our comprehensive approach and experience in infrastructure projects allow us to provide valuable support to our clients throughout the entire project lifecycle, ensuring compliance with regulatory requirements, protecting their interests, and facilitating the successful completion of their infrastructure projects.

Smelters Steel Alumina Gold

Smelters, Steel, Alumina, Gold

We have a proven track record in developing and administering contracts for various projects in the mining and processing industry. Our experience includes contracts for alumina smelters and carbon bake facilities in Gladstone, bauxite mining in Gove, and iron ore mining and processing in the Pilbara region.

We excel in assisting our clients with the development and administration of contracts, ensuring that all contractual obligations are met and the projects are executed smoothly. This involves careful contract drafting, negotiation, and ongoing contract management to safeguard our client's interests and ensure project success.

Additionally, we have extensive experience in navigating the complexities of obtaining crown land grants and managing the associated processes. We understand the intricacies of working with government entities and can provide valuable guidance and support in securing necessary land grants for project development.

Overall, our impeccable record and expertise in project development allow us to provide comprehensive assistance to our clients. Whether it is a contract development, crown land grants, or general project development, we are committed to delivering exceptional services that meet our client's needs and drive project success.

Construction Lawyers Brisbane

When you need Lawyers who truly understand Construction

What we do....

With over 30 years of construction industry experience, we offer our comprehensive expertise in project development to a diverse range of clients, including Developers, Builders, Contractors, Corporations, and Local Authorities. Our background as Design Engineers, Estimators, Schedulers, Contract Administrators, and Project Managers provides us with valuable first-hand knowledge and insights.

We are well-versed in preparing and administering contracts that cover technical specifications, drawings, and commercial terms. Our team is equipped to handle various aspects of contract management, from managing variations to resolving complex construction disputes. We possess the technical, scheduling, and construction expertise needed to ensure successful outcomes.

You can trust our extensive experience to guide you through the intricacies of construction law. We understand the complexities and challenges of the construction industry and are committed to providing valuable guidance and support to our clients. Whether you need assistance in contract preparation, project management, or dispute resolution, we are dedicated to delivering successful results based on our wealth of industry knowledge and expertise.

 

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.

Construction Lawyers Brisbane: Where Construction Experts Meet Legal Excellence.

Welcome to our team of qualified construction experts who have also attained legal qualifications. By combining our in-depth understanding of the construction industry with legal expertise, we are uniquely positioned to provide comprehensive and efficient legal solutions for your construction-related matters.

We recognize the complexities and intricacies involved in the construction industry, enabling us to streamline the legal process and address your specific needs and challenges effectively. Our goal is to save you both time and money by offering practical and tailored legal advice that aligns with the unique requirements of your construction projects.

With our qualified team, you can trust that your financial interests will be protected and your success will be prioritized. We are committed to delivering exceptional legal solutions, backed by our practical construction knowledge and experience.

Contact us today to benefit from our extensive expertise and discover how we can provide you with outstanding legal solutions tailored to the construction industry. Let us guide you through the legal complexities while ensuring your best interests are always at the forefront of our approach.

WHO-OUR-SERVICES-ARE-FOR

We recognize the importance of nurturing a positive client relationship while ensuring a healthy cash flow. At our firm, we specialize in developing amicable dispute resolution strategies, allowing you to preserve both your professional connections and financial stability. We prioritize soft approaches to conflict resolution before resorting to adversarial measures, ensuring a harmonious outcome for all parties involved.” 

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CONSTRUCTION LAWYERS BRISBANE
FREQUENTLY ASKED QUESTIONS

  • 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.

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  • 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.

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  • 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.
    Delay Claim Flowchart

    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.”

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  • 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.

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  • 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.

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  • 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.

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  • 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 realize 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.

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  • 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 (BIFA), or take your claim to the courts.

    The BIFA is our recommended first step. BIFA 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 BIFA is the law. We actually recommend going straight to adjudication under BIFA and then come back and use the dispute resolution process in the contract to increase your overall recovery if adjudication was not wholly successful.

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  • 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, update your schedule and issue it every month.

    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 legal advice, even the more seasoned contract 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 just do 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.”

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  • 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:

    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 NT, 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.

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  • 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.

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  • 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 accumulated. We first separate delay events into excusable and non-excusable, compensable and non-compensable and then analyse the site 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.

    Method of Analysis 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 analyzed 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.

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  • 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:

    How is our claim going to be presented
    Projects Critical Path
    Power On 60-Month Completion
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  • Q16

    CLB 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:

    Iron Road Components
    Value Improving Practices
    Collaboration Document Control
    Iron Road TMM Oppurtunities Plant
    Australia Current Projects
    FS Fice Execution Phases
    PMC RPC and EPCCM Services
    Process Equipment Solutions
    Book an appointment
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Head Office Address: Construction Lawyers Brisbane
74B Union St,
Spring Hill QLD 4000
Australia
Phone Number: 07 3054 7105
Fax Number: 07 3839 5393
Business Name: Construction Lawyers Brisbane
Status: Registered
Holder Name: BAKER MERZ LAWYERS PTY LTD
ABN: 40 650 782 317
Category: Law firm
Services: Security of Payments Act QLD, Claims Preparation, CPM Delay Analysis, Construction Law
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Our aim is to bring clarity to Construction Disputes for Developer Builders, Contractors, and Corporations by using our 30-years plus of experience in the construction industry working as Design Engineers, Estimators, Schedulers, Contract Administrators, and Project Managers.

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Spring Hill QLD 4000
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07 3054 7105

Email: info@clb.net.au
Fax: 07 3839 5393
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