MDA Law
Appointment of an adjudicator under the GCC 2010
So you’ve submitted your claim in terms of Clause 10 of the GCC 2010 but the Engineer comes back to you, in terms of Clause 10.1.5, rejecting your claim. What now?
Provided that you are sufficiently confident in the merits of your claim, you may wish to skip over the amicable settlement provisions contained in Clause 10.4 and proceed directly to the next step. This is adjudication, however, navigation of the provisions taking a party from the Engineer’s ruling to the appointment of an adjudicator may be confusing for the lay person.
First and foremost, you are required to submit a notice in terms of Clause 10.3 disputing the Engineer’s ruling within 28 days thereof. This is important as a time bar attaches to this notice and if it is not submitted timeously, you will lose your right to claim.
Secondly, you need to consider whether the contract provides for standing or ad-hoc adjudication. This is dealt with in Clause 10.5, read with the contract data. The contract data will specify whether one or three adjudicators are required.
From there, reference needs to be made to the Adjudication Board Rules contained at the back of the GCC 2010, read with Clause 10.9.
If the contract provides for standing adjudication, the parties should have selected one or three persons to act as adjudicator/s at the outset of the contract, from the SAICE panel of standing adjudication members. If the parties do not make a selection within seven days of either party delivering a request in writing for such a selection, either party may apply to the President of SAICE or his nominee to make a nomination. A referral may then be made to the adjudicator.
If the contract provides for ad hoc adjudication, the Adjudication Board Rules require a few extra steps before such a referral can be made. In terms of Rule 4.1 a notice of adjudication must be delivered within 28 days of the event giving rise to the adjudication.
It is often debated whether this event is the Engineer’s ruling or the delivery of the notice of dispute. For this reason, it is advisable to ensure it is delivered within 28 days of the Engineer’s rulings. This is important as this notice is separate and distinct from the dispute notice and is subject to its own time bar clause.
Included in this notice must be the names and fees of three or more potential adjudicator selected from the SAICE panel of ad hoc adjudicators, who have confirmed their availability to act. The other party is required to select one or three of these adjudicators within seven days of receipt of the adjudication notice.
If they do not, either party may apply to the President of SAICE or his nominee for this nomination. Once the nomination has been made and the Adjudication Board Member Agreement/s concluded, the dispute may be referred.
Author: Michelle Kerr, Senior Associate
