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Construction Law/Recurring Justifications after initial Claim Presentation

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Question
Dear Mr. Femi Alofe,

1.0 After the initial presentation of a claim by a Contractor to the Engineer, is it accepted if the Contractor changes his preliminary facts or submits further facts/clarifications/justifications,
 1.1 before he receives the decision from the Engineer ?
     OR
 1.2 after he received a rejection notice from the Engineer ?
2.0 In Adjudication proceedings once the said claim is rejected,
 2.1 Should the Adjudicator present his arguments based only on the
     initial facts/clarifications/justifications of the Contractor ?
     OR
 2.2 whether the Adjudicator is allowed to proceed on entirely
     different facts/clarifications/justifications ?  

 Thank you in advance.

Answer
Dear Basil,

Thank you for your question.

Just like in most forms of dispute resolution mechanism, the claimant has a choice to submit additional facts or supporting documents or evidences to support his claim at anytime during the proceedings provided he notified the agency (court, Engineer,  adjudicator or arbitrator) of his intention to do so prior to determination of the matters at hand of such agency.

Now to directly answer your question,
1.0 - a contractor can submit further or additional clarification or supporting evidences to justify the claim he had presented at anytime within either of the following:
1.1 -  Before Engineer's determination
1.2 After the Engineer's determination whether notifying the rejection of the claim or recommending the claim but he would need to submit this as a re-submission for a re-appraisal or re-review by the Engineer informing the Engineer that his reason for this request is as a rsukt of his discovery of additional facts and new evidences that could assist and facilitate a rexisted Engineer's determination.

2.1 - in adjudication, the outcome of an adjudicator is determined based on the matter refereed to him by the parties. Don't forget that, it is not only the contractor that submit documentation to the adjudicator,  it is both parties who are in disputes. It therefore suggests that, the adjudicator would be looking at what the Contractor has submitted to the Engineer which formed the basis of the Engineer's determination and would examine if the Engineer has acted and decided reasonably and fairly. If this is to be found,  it would be improper for the adjudicator to consider new facts or new evidences and supporting documents which were not part of the Contractors initial submission to the Engineer unless, the Engineer has no objection to such submission stressing clearly that, these are completely new facts else, the admissibility of such new facts and evidences may be subject of rejection on same matters to which the Engineer has made determination and which is now being referred to the adjudicator for a review and decision.

2.2 - Whether, the adjudicator is allowed to proceed on an entirely new facts is something to be agreed between the parties and the rule of the adjudication proceedings. Remember,  adjudication is an alternative dispute resolution mechanism which is informal and the parties could agree at the rules of proceeding in their best interests. If they so wish that new facts and new evidences be consider (instead of asking the Engineer to revise his decision by going through the new facts and evidences which would waste time and resources, which is not the intent of alternative dispute resolution mechassis like adjudication), they could agree and the adjudicator could proceed in line with such agreement. Now, the situation may be different, where we have institutional adjudication body which may have sets of rules of proceedings and again, the parties are at liberty to change the rules if allowed which is mostly the case.

I hope I sounded clear enough.

Thanks you.

Femi

Construction Law

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Femi Alofe

Expertise

I can answer all questions relating to the followings: 1. Contract Administration - variations, contract clauses interpretation, all post contract procedures, valuations and certificates questions, extension of time issues and prolongation cost matters. 2. Contract Practice - Any questions regarding forms of contract like JCT, FIDIC & other Bespoke forms. 3. Quantification, measurements and Estimating questions 4. Contracts and construction law questions and dispute resolutions problems. 5. All FIDIC Conditions of contracts

Experience

Out of my 24 years experience in construction industry, i have the following specific experience: 1. Contract Administration - 15 years in contract administration with over 10yrs in Managerial positions covering africa and the middleeast. 2. Contract Practice - 15 years experience with over 10yrs in Managerial and expert positions covering africa, north america and the middleeast. 3. All pre-contract procedures, Tendering, Quantification, measurements and Estimating questions - 20 years experience. 4. Contracts and construction law questions and dispute resolutions problems - 15 years experience with over 10yrs in Managerial and expert positions and 5 years expert witness and active practice in arbitration proceedings covering africa and the middleeast.

Organizations
1. FAIQS - Fellow, Australian Institute of Quantity Surveyors, Australia 2. FRICS - Fellow, Royal Institution of Chartered Surveyors, UK 3. CCP - Certified Cost Professional AACEI, USA 4. PQS - CIQS, CANADA 5. ACIArb. - CIArb, UK 6. MNIQS - NIQS, NIGERIA 7. RQS - QSRBN, NIGERIA

Publications
1. AACEI RP on Estimating, 2010

Education/Credentials
1. B.Tech (QS) 2. RICS professional course, CEM - UK 3. MSc , UK NARIC 4. Professional Doctorate ( to commence 2016)

Past/Present Clients
1. Larsen & Toubro Ltd, Dubai UAE 2. Larsen & Toubro (oman) LLC 3. Archi + Web consortium, Abuja Nigeria 4. George Dike & Associates, Minna Nigeria 5. Public works Authority (Ashghal), Doha Qatar

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