英文原文

Claims

Abstract: Claims play an important part in the everyday life of many engineers. Claims mean different things in different cultures, and attitudes to claims vary widely. In some environments, a claim is a very natural thing. In those cultures the monthly request for ordinary payment is sometimes referred to as a claim. In other cultures a claim is regarded as a declaration of war. It is something that signals a serious dispute. In some cultures you wont submit a claim unless your intention is to cut off friendly relations with the receiver.

In this article we use the word claim in the most common European sense. It then means a request for additional payment, for whatever reason. Because it is additional, it may be disputatious. Most disputes and contractual conflicts are started, or made known, by a claim. But most claims dont lead to disputes. They are settled by negotiation between the parties. In this article the concentration is on disputatious claims, and the claim situation is seen chiefly from the Sellers perspective.

The sequence which this article follows is:

○ Always claim

○ Marshal(arrange) the arguments

○ Timing

Always claim

It is easy to find excuses for not making claims: It is easy to go broke by being charitable(compromise). Buyers and consulting engineers dislike claims instinctively(on purpose). In their opinion sellers always make too many claims and the claims are almost always without merit(advantage). Most of my experience is from the seller side and my opinion is different. I have found that site agents are normally reluctant(not willing) to submit Claims, to the extent that they avoid them at almost any cost. The reasons they give are typically:

○ We have such a good Climate on site; we wont destroy it by claiming.

○ its such a small Claim anyway, its not Worth risking my relationship with the RE.

○ The fact is that we are not without blame ourselves; if we claim, they can hit us back with these argumentshellip;

The above Confirms that in the Contract administration phase the climate is most important to the buyer. By maintaining a good climate he avoids claims, because the seller wants to maintain the good climate. The sellers reaction is unnecessary, however. In a good climate its always possible to submit defensible claims without risking the climate. For the buyer, it may be wise to keep the climate constructive through the whole contract period, including the claims negotiations. This is because claims negotiated in a constructive climate are likely to cost less than if the seller negotiates aggressively. Still. It is quite common for buyers to have started the earlier contract negotiations in an aggressive climate, which always induces a host of claims at a later stage. Then, when the works get near to completion, the buyer realizes that he needs the co-operation of the seller to get a proper result--you cannot force anybody to do his best--and tries to change his mode into constructive. Sellers often make the opposite mistake. In the beginning the seller needs co-operation mere than the buyer. But the nice and constructive contracts negotiator, who can establish the best climate for the contract, cannot be expected to be the fighter that gets the most out of claims in the end.

A claims negotiation concerns compensation for something unexpected that has happened or for extra work. It is a typical case for aggressive negotiation- the profit of one party is the loss of the other. Thus, it should be noted that different skills are required for a successful contracts negotiator and a successful claims negotiator. This is a dilemma (difficult for both parties), because very often the same persons are involved in both situations. And it is a fact that most people are either naturally constructive or naturally aggressive negotiators.

By education, such as reading good books on the subject of negotiations, and by training, most people can however improve their skills as negotiators in all styles. Lets return to the subject of claims with an example of how it pays to claim all you can. I was involved at a late stage in a bad contract. We were losing heavily and put in claims which were weak in many cases. We originally hoped for about 10% and ended up with 85%.

Claim all you can.

In another example, in Eastern Europe, the most obvious cause of delay was that the buyer didnt make the site available. So we claimed for extension of time and the buyer had to admit that it was their fault.

This was an industrial plant and it was important to the buyer that the original completion date was kept. So we agreed to accelerate the work to reach the original completion date in spite of the delay of several months. The buyer agreed to pay a compensation for the acceleration. When the work got into full swing, we found that we could accelerate even more. In fact, we were able to complete the works several months before even the original contractual completion date. That made us eligible for a bonus for early completion under the contract. The contract also had an inflation clause. It provided for adjustment of the price in relation to an official index. The wording of the clause based the adjustment on the original contract period, plus any extension of time allowed under the contract. If the seller would delay the work, no compensation would be payable for the inflation during that delay. This clause gave us the opportunity to claim an adjustment of the contract price, based on the change in the index up to the date of the allowed extension. That date was in fact almost a year later than the actual completion date, but that was what the contract stipulated.

So we claimed for:

(1) Extension of time

(2) Acceleration

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