Suggested changes to the construction claims procedure, as set out in the amendments that are proposed in the sixth edition of the Joint Building Contracts Committee’s (JBCC’s) suite of building agreements, will simplify the claims process but will not improve clarity and eliminate uncertainty, says skills provider Alusani Skills & Training Network course leader Steve du Toit.
He says, although the JBCC has a draft education copy of the revised edition, final approval and publishing have been repeatedly delayed, with no official announcement of the release date being made.
The JBCC is a nonprofit company focused on the compilation of contract documentation for the construction industry that has the approval of the Construction Industry Development Board and is used by the national and provincial government sectors.
“The current claims procedure involves a series of two prior notifications. The first notification, in terms of clause 29.4.1, pertains to circumstances, which, in the opinion of the contractor, could result in a delay. The second notification, in terms of clause 29.4.3, pertains to the contractor’s intention to submit a claim, followed by the claim itself.
“Not only is this process cumbersome, but the requirements of the content of the claim also lack sufficient clarity. The contractor is required to state certain aspects relating to the effect of the circumstances that constitute the claim, as opposed to producing evidence of these circumstances, by referring to an entitlement programme,” says Du Toit.
He explains that, while the proposed amendments rectify the situation by dropping the requirement of the clause 29.4.1 notification, they only partly address the lack of clarity he identifies.
“The contractor is now required to illustrate the change to the critical path on the current programme, where appropriate; however, this is a matter of subjective interpretation,” he explains.
Du Toit notes that the proposed amendments also do not address the current uncertainty regarding the manner in which claims are to be determined, whether by the principal agent, in terms of clause 29.7, or by an adjudi- cator in a subsequent dispute referral.
“The construction industry is, generally, frustrated, as there are definite deficiencies in the current edition and these need to be addressed,” states Du Toit.
He notes that a lack of knowledge on the part of management regarding the contents of the standard construction agreements and their practical application, as well as the attendant significant financial impact on projects, is pervasive.
“It is essential that this knowledge is transferred. This can only be done effectively by attending accredited training courses provided by companies like Alusani Skills & Training Network,” says Du Toit.
Despite the challenges it faces, he says the future of the construction industry is positive.
“There has already been an upswing in construction in the private sector in Gauteng, which is now filtering through to other provinces,” he concludes.