Fuentes de datos Agencia Tributaria

A Contractor intending to make a claim for additional payment must give notice that he will do so within 28 days of the event.

Thereafter he must keep records including any records required by the Engineer, who will be entitled to inspect such records.

Within 28 or an agreed number of days of the Contractor's notice, he should send a detailed claim to the Engineer. If the claim has a continuing effect, he should send regular interim claims followed by a final claim once the effects cease.

If the Contractor fails to give notice, keep records or provide details, his entitlement will be limited by what can be proved from the records that do exist. The Engineer is obliged to include an Interim Certificate in respect of such claims or parts of claims for which the Contractor has supplied sufficient particulars. This clause is an expansion of clause 52 (5) of the 3rd Edition. It is an attempt to regulate the claims procedure. Only time will tell whether an improvement has been achieved in practice. ICE 6th has adopted a very similar procedure.

53.1 "Notwithstanding any other provision of the Contract...". It is difficult to see how this clause will relate to clauses with their own internal notice procedures: clause 12.2 (Adverse physical obstructions and conditions) requires notice "forthwith"; clause 27.1 (Fossils) requires the Engineer to be acquainted "immediately"; and clause 52.2 (Variations) requires notice within 14 days. It is submitted that where the notice given makes express the Contractor's intention

to claim and has been copied to the Employer, then that is sufficient notice and is given "within 28 days". No further notice is necessary. If notice is not given, for example within the 14 days required under clause 52.2, it may be arguable that this clause overrides, allowing the Contractor to give notice within 28 days or to benefit under sub-clause 53.4. It seems unlikely that such an argument will succeed as this clause does not create rights to payment but imposes a machinery to deal with the rights created by other clauses. If such other clause prevents the right arising in certain circumstances, this clause could not, it is submitted, intervene. Accordingly, the "notwithstanding" appears to be addressed to clauses such as those quoted above which seem to grant rights to the Contractor unequivocally: notice must apparently be given regardless, although the penalty for failure to do so is much reduced by sub-clause 53.4.

As the words "claim" and "additional payment" are not defined terms, the precise application of the clause is uncertain. Is it necessary for a Contractor to "claim" in circumstances where the entitlement is beyond dispute or triggered by, for example, the Engineer's opinion?

"Additional payment pursuant to any clause": clauses pursuant to which additional payment may be sought are as follows:-

- clause 4.2 Assignment of subcontractors' obligations - clause 6 Drawings

- clause 9.1 Contract Agreement - clause 12.2 Physical obstructions - clause 17.1 Errors in setting out

- clause 20.3 Loss or damage due to Employer's risks - clause 22.3 Indemnity

- clause 27.1 Fossils

- clause 30.3 Transport damage indemnity - clause 31.2 Other contractors

- clause 36.5 Tests - clause 38.2 Uncovering - clause 40.2 Suspension

- clause 42.2 Late possession of the site

- clause 49.3 Remedying defects not the responsibility of the Contractor - clause 50.1 Searching for defects

- clause 52 Valuation of variations - clause 58 Provisional sums - clause 65 Special risks

- clause 69.4 Termination by Contractor - clause 70 Fluctuations and legislation

Most of the above clauses state that the Engineer "shall determine" the Contractor's entitlement. Under clause 40.2 (Engineer's determination following suspension), "the Engineer shall...determine...the amount". Similarly, under clause 49.3 (Cost of remedying defects) and clause 50.1 (Contractor to search), if the work has been caused by defects which, in the Engineer's opinion, are not

the Contractor's responsibility, the Engineer "shall" determine the extra payment. In these instances, the only question is the quantum of the Contractor's costs. "... or otherwise...": this appears to be a reference to breach of contract. This inclusion of breach of contract within the workings of the contract is reflected in clause 67 (Settlement of Disputes) where it is made clear that even disputes as to breach of contract must be referred to the Engineer for his decision prior to any arbitration. There is no similar provision in clause 52(5) of the 3rd Edition nor in clause 52(4) of ICE 5th or 6th. It is generally accepted that without words such as those to be found in clauses 53 and 67 of the 4th Edition, the Engineer would have no jurisdiction in relation to breaches of contract. Any claims deriving from contract documents other than "these Conditions" or generated by local laws would also be covered by the phrase.

"...if the Contractor intends to claim...": the force of this clause is mitigated by this phrase. If the Contractor can demonstrate that at the relevant time he did not intend to claim, perhaps because he was unaware of the potential for such a claim, then the notice requirement is inapplicable. However, it should be noted that the 28-day period does not run from the date on which the intention was formed, nor from the date on which the effect first manifested itself, but the date on which the event giving rise to the claim occurred.

An additional requirement is placed on a Contractor pursuing a claim by clause 60.9 (Cessation of Employer's liability). Under this clause, the Employer's liability for such claims ceases unless the Contractor has included the claim in his Final Statement and, if the claim arose prior to substantial completion, in his Statement at Completion.

Under clause 60.1 (Monthly statements), the Contractor is to include in his statement "any other sums to which the Contractor may be entitled under the Contract". The form of that statement is to be prescribed by the Engineer who will inevitably require that the grounds for the claim be identified. A Contractor may well wish to point to his monthly statement by way of a notice under this sub- clause. A difficulty in the Contractor's way is that clause 60.1 does not require the monthly statement to be copied to the Employer whereas the Employer must be sent a copy under the current sub-clause. Apart from this objection, it is submitted that the monthly statement could well suffice. Under the 3rd Edition, regular monthly reports were called for, a system which has certain apparent advantages over the present clause. In ICE 6th, notices are called for "as soon as may be reasonable and in any event within 28 days".

53.2 The obligation imposed upon the Engineer to study the records may be found in practice to be inconvenient to the Contractor and Engineer alike. This clause may be honoured more in the breach. See comments under 53.5 below. 53.3 This clause bears similarities with clause 44.3 (Interim determination of extension of time) where delays having a continuing effect cause the Contractor to give regular interim notices which are intended to result in interim extensions

of time being granted. Here, the regular notices are to be given and there is provision, albeit ambiguous, for interim payment under sub-clause 53.5.

The requirement to submit "a final account within 28 days of the end of the effect resulting from the event", will often prove difficult to enforce in practice. It is very often highly debatable when the effects of any given event come to an end. For example, the effects of a critical delay will, on one view, end only upon substantial completion as every critical activity subsequent to the delay will have been postponed.

53.4 In contrast to clauses 44.2 (Contractor to provide notification and detailed particulars) and 52.2 (Power of Engineer to fix rates), there is no attempt here to create a condition precedent to entitlement. The incentive offered for compliance is that the Contractor's entitlement would be limited to such amounts as he is able to prove from such contemporary records as he maintained. The severity of this clause would depend very much on the Engineer's or arbitrator's interpretation of the clause. Arbitrators reading the clause at its narrowest would permit no oral evidence and would require the claim to be "verified", i.e. proved by contemporary records. This requirement may lead to a far higher standard of proof than the traditional balance of probabilities. Similarly, they could decline to make assumptions in order to bridge gaps in documentation. More likely however, arbitrators will take the same view as they would if this clause did not exist, namely that the Contractor will only recover those sums to which he can prove his entitlement.

53.5 The Engineer is obliged to certify in interim certificates those claims in respect of which he has sufficient particulars. If clause 53.2 has been followed and the Engineer has indicated what records he requires to be kept, it will be difficult for him to plead an insufficiency of particulars. The Engineer is not entitled to hold out for the claim to be fully particularised before making any payment but must make such payment as the particulars justify. In the common situation where liability is agreed but the amount of costs is disputed, this clause will be invoked in support of an interim payment.

Whilst this may have been the intention, the Employer could argue that payment should only be made where the Engineer is fully satisfied as to a particular part of the claim. If it is clear that the claim is worth, for example, between $20,000 and $30,000 but agreement had not been achieved on any distinct part of the $20,000, the Employer could resist payment. This seems unfortunate and the clause could usefully be clarified. This provision should be compared with the provision for on-account payments in clause 52.1 (Valuation of variations) and clause 52.2 (Power of Engineer to fix rates). Under those clauses, it is made clear that payment is to be made in the absence of agreement or the fixing by the Engineer of a rate or price. This comparison assists the Employer to argue that the draftsman did not intend such on-account payments to be made under the current sub-clause.