MDA Law
Mind Your Step
The procedure to be followed when submitting a claim under the GCC 2010, is set out in Clause 10.1 thereof. The process is relatively simple i.e. a written claim must be submitted within 28 days after the events or circumstances giving rise to the claim arose or occurred. If the events or circumstances are on-going, a written notice of intention to claim is delivered within this 28-day period, followed by monthly updated particulars and a final claim, submitted within 28 days after the end of the events or circumstances. The Engineer then has a further 28-day period to provide a ruling on this claim.
Although this may seem simple enough to the uninitiated, submission of a claim/notice of intention to claim and final claim within the relevant period does not automatically mean that the procedural requirements of the contract have all been met. Certain events or circumstances require the submission of preliminary notices by the Contractor, in order to earn the entitlement to claim.
An interesting example of this is the procedure to be followed when claiming for an extension of time and/or monetary compensation arising out of a Variation Order. Variations are dealt with in Clauses 6.3 and 6.4 of the GCC 2010.
Firstly, an instruction from the Engineer does not constitute a Variation Order unless it is in writing and is stated to be a “Variation Order”. If an oral instruction, or an instruction which does not contain the words “Variation Order” on it, is issued, the Contractor has 7 days to confirm, in writing, to the Engineer that it is a Variation Order. If the Contractor doesn’t do so, the instruction will not be considered a Variation Order. If the Engineer does not, in writing, contradict this notice within 7 days of receipt thereof, the instruction is deemed to be a Variation Order.
Once it has been determined whether or not there is a Variation Order in place, the Engineer has 28 days to value the Variation Order. If s/he does not, the Contractor may, with respect to any delay to Practical Completion and/or proven additional costs of giving effect to the Variation Order, make a claim in accordance with Clause 10.1. This claim is only due 28 days after the last date by which the Engineer should have delivered his/her valuation.
If the Engineer does provide a valuation, and the Contractor is dissatisfied with it, the Contractor has 28 days to submit a dissatisfaction claim in terms of Clause 10.2. Clause 10.1 will not be applicable in this instance.
The process is identical under the GCC 2015.
Author: Michelle Kerr, Senior Associate
