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ECAM
15,5 Claims management in the
Egyptian industrial construction
sector: a contractor’s perspective
456
Amr A.G. Hassanein and Waleed El Nemr
Construction Engineering, The American University in Cairo, Cairo, Egypt
Received June 2006
Revised July 2007
Accepted October 2007
Abstract
Purpose – This research aims at providing a better insight of the status of claims management in
general, and change order claims in particular, from the contractor’s perspective with respect to the
Egyptian industrial construction sector, as they proved to be the main cause of claims in this sector.
Design/methodology/approach – A questionnaire survey discussing the most persistent issues of
claims management in general, and change order claims in particular, was conducted on a selected
sample of construction industrial companies.
Findings – The results demonstrated that claims management in the Egyptian industrial sector has
been suffering from a variety of obstacles, including lack of proper notification procedures in public
contracts and poor documentation management. Change orders had been actually lost due to poor
documentation. Oral change orders were present in approximately 76 per cent of the projects; half of
which resulted in loss of rights due to improper documentation, which was largely attributed to the
lack of contract awareness of the site team, and to the “fear of consultant phenomenon”.
Practical implications – The paper presented several recommendations for improving claims
management including: the formation of a standard form of contract general conditions for the
Egyptian industrial sector, and applying a methodological approach for change orders quantification.
Originality/value – The increasing number of international companies contemplating construction
projects in Egypt, and the significant problems with regards to claims propagation and management,
addressed the need to conduct such study that targets one of the most challenging areas in the
Egyptian construction industry.
Keywords Construction industry, Egypt
Paper type Research paper
Background
A claim was defined by Hughes and Barber in their reference “Claims in Perspective”
as “a request, demand, application for payment or notification of presumed entitlement
to which the contractor, rightly or wrongly at this stage, considers himself entitled with
respect to an agreement has not yet been reached” (Hughes and Barber, 1992).
A study was conducted on 24 construction projects in Western Canada showed that
the main cause of claims was change orders that accounted for approximately 50
percent of all the claims recorded during the course of the study (Semple et al., 1994).
Other documented causes were: severe weather conditions and acceleration.
A significant number of contractors do not quote a contract clause when preparing a
claim, as stated in various research studies including Jergease and Hartman (1994) and
Engineering, Construction and Vidogah and Ndekugri (1997). This was assumed to stem from their lack of familiarity
Architectural Management with the contract and its relevant clauses.
Vol. 15 No. 5, 2008
pp. 456-469
q Emerald Group Publishing Limited
0969-9988
This paper was published previously in error in Engineering, Construction and Architectural
DOI 10.1108/09699980810902749 Management journal, Vol. 15 No. 3, pp. 246-59. The Editors would like to apologize for this mistake.
Qualification of change orders is an important dimension of claims management Claims
that has been the focus of many research works lately. According to the Conference of management
Claims Management presented by James (1993), it has been proven from various
judicial rulings that a contractor or subcontractor who fails to serve a proper claim
notice would lose his rights. A research by Jergease and Hartman (1994) addressed the
need for proper qualification of change order claims notices by emphasizing the effect
of costs. Subsequent researches supplemented Jergeas and Hartman’s emphasis on the 457
importance of costs (Hanna and Russel, 1998; Hanna et al., 1999a, b).
Zack (1993) introduced several tactics or legal maneuvers that contractors and
owners could use to win claims without actually violating the contract terms.
Reservation of rights approach was among the most important practices discussed.
The industrial sector in particular is one of the areas most susceptible to changes
and claims (Burati, 1992). Heavy industrial projects need adequate time for design.
Hence, execution phases might commence while the design phase is still under way,
leading to incomplete and inaccurate designs (Hanna and Russel, 1998). The result is
an ongoing flood of claims and a project budget and time for completion that are not
met.
Over the years, a significant portion of construction literature has been written on
claims. While the majority of this research was the result of research conducted in
Europe or North America, yet scarce research has been conducted in the Middle East;
despite that the situation in the Middle East is not that much different. However, it has
been reported that, in 2004, construction claims in the United Arab Emirates reached
$4 billion; nearly ten times its reported figure in 1999 (Al Bawaba, 2005). Similarly, a
study aimed at evaluating the causes of delay in Saudi Arabia and the UK concluded
that the magnitude of delays in Saudi Arabia exceeded that of the UK, although the
delay categories were comparable (Falqi, 2004).
Questionnaire formulation
As mentioned previously, the questionnaire was formulated based on extensive
literature. It comprised seven questions. Each question was discussed in detail in light
of the literature on which it was based.
Question 1
The claims that occurred in this project can generally be attributed to:
.
Change orders (design changes, extras . . . .).
.
Faulty or late owner-supplied materials and equipment.
.
Inadequate bid information.
.
Poor quality of drawings and specifications.
.
Other.
Question rationale. The above causes of claims were obtained from the research
conducted by (Jergease and Hartman, 1994). The authors listed additional factors, but
the four highlighted were chosen due to their prevalence in the Egyptian industrial
sector. The question provides an indication of the type of claims experienced in heavy
industrial projects.
Question 2
The percentage of change order claims relative to the total claims in the project is:
.
5 percent.
.
10 percent.
.
15 percent.
.
20 percent.
.
50 percent.
. Other.
Question 3
459
In this project, what is the percentage of claim notices that were directly tied to a
contract clause?
.
5 percent.
.
10 percent.
.
15 percent.
.
20 percent.
.
50 percent.
.
If other – specify.
Question rationale. The question discussed one of the major parameters of proper
claims management that is qualification of claims. In an article written as a guideline
for engineers entering into arbitration, the authors outlined the importance of proper
contract administration. They specifically addressed the issue of relating every dispute
to the contract stating, “it will be difficult, if not impossible, to prove the merit of a
claim not tied to a contract clause”, Gransberg and Joplin (2000). However, this
important concept of contract management stimulated the need for this question.
Question 4
.
What is the procedure through which the documentation for a claim is handled?
.
Do you believe that there were change orders to which you were entitled but
which you did not obtain due to poor communication?
.
In your opinion, what documentation may have helped improve your records
management in the project?
Question 6
Were there any oral change orders in this project? If yes, how were they handled?
Questions rationale. The above questions were based on the article “Legal aspects of
460 oral change orders” by Thomas et al. (1991). Commonly, there are frequent verbal
instructions on job sites. The relationship between oral change orders and
documentation is that frequent verbal instructions with no supporting
documentation bar the contractor from recovering the associated incurred expenses.
A noteworthy point that was brought up by Thomas et al. is that, contrary to common
perception, oral changes can be made valid if certain requirements are met. One ruling
was made by a Supreme Court in the US stated that “oral change modifications are
valid even though there might be specific contract language prohibiting oral changes”,
Thomas et al. (1991). The discussion presented in this article stimulated the need to
investigate the status of oral change orders in the Egyptian industrial sector. Two
areas were examined. The first was to understand the contract’s position regarding
written versus oral change orders. The second was to explore the frequency of oral
change orders occurrence and the means by which these instructions were handled.
Question 7
Is there any agreed-upon basis for quantifying changes that occurred in this project?
Question rationale. This question was based on Fourie’s (1993) approach of change
orders quantification. Fourie presented numerical formulae to calculate changes costs
so that the balance of the parties at the time of tender remains unchanged. Fourie
recommended that both the owner and the contractor must agree on these formulae
prior to the execution of work. The changes costs are divided into: method related
costs; activity duration costs; project duration costs; quantity related costs and change
rate costs. Thus, if Fourie’s logic is applied in any form to the Egyptian industrial
sector, claims and disputes over the cost impacts of contract change orders can be
greatly reduced.
Figure 1.
Causes of claims in the
Egyptian industrial
construction sector
ECAM only 30 percent of the notifications made were tied to a contract clause. Both
15,5 respondents stated that relations with the owner were jeopardized whenever
notifications or documentation for contractual problems were made.
Results revealed that in 67 percent of the projects, notifications were always tied to a
contract clause. However, this percentage may not be regarded as a factual
presentation of the status of notifications, as respondents may have optimistically
462 answered this question so as to not admit a shortcoming on proper claims notification
within their respective organizations.
Figure 2.
Documentation that could
improve records
management of the project
ECAM absence of these reports have caused the head office team to lose contact with the
15,5 events that happen on site, and accordingly, were unable to handle claim situations.
Equally important to the site daily records, is the contractual awareness of the site
team. The lack of contract awareness by the project’s site team has been recognized in
numerous published literature, such as that of Vidogah and Ndekugri (1997) and
Jergease and Hartman (1994). In Egypt, the situation is no different. During the course
464 of this study, numerous cases had been reported of site engineers who received direct
instructions from the owner’s representative or consultant and the result was
additional incurred expenses as a result of poor or inadequate supporting
documentation. Therefore, this research recommended that contract awareness
should not be restricted to high-level site management, but should be directed to site
engineers directly dealing with the consultant or owner’s representative.
One of the solutions offered is that the head office should develop a contract
checklist that contains all the required contractual administrative requirements, and
send this checklist to the site to be filled out with the daily report. Such a checklist
would ensure that important contractual information would be delivered to the head
office and that would force the site team to consider contractual implications when
facing daily issues on site.
One significant result from this research was what was termed as “fear of consultant
(or owner) phenomenon”. Nearly 33 percent of the projects exemplified this phenomenon.
Several respondents stated that they waived some of their contractual rights due to fear
of bruising their business relations with the owners and consultants, which could affect
their chances as candidates for future potential projects. Therefore, written timely
notices, documented minutes of meetings, written confirmations of oral changes would
not be implemented purposely by Egyptian contractors in light of the adversarial impact
such practices would have on their business relations with the owner.
Suggested solutions
Solutions are proposed based on the nature of the problem and the documented
solutions for improvement.
Conclusions
As outlined previously, this research aims at fulfilling two main objectives. Concerning
the first objective, the following is concluded:
.
The most common types of claims have been documented as change orders and
delays caused by the owner (contributing to 54 and 25 percent respectively of the
projects sampled).
.
Regarding claims qualification, 67 percent of the sampled projects stated that
they used contract-clause notifications all the time. As for claims documentation
procedures, in nearly 62 percent of the projects, the site team was the initiator of
claims matter.
.
A total of 57 percent of the sampled projects indicated that change orders had
been lost due to poor documentation practices. Respondents reported several
documentation procedures for improving records management status. A
majority (76 percent) of the projects experienced oral change orders, of which
50 percent stated that their entitlements were lost due to the improper
documentation practices, which were in turn linked to the lack of contract
awareness of the site team and fear of consultant phenomenon.
ECAM Concerning the second objective, the research addressed the following
15,5 recommendations for the enhancement of claims management in the Egyptian
industrial construction sector:
.
The inclusion of float-sharing provisions in the contracts as a means of
mitigating impacts of owner-caused delays.
.
The formation of standard conditions of contract tailored for the Egyptian
468 industrial sector to enforce standard contract administration practices, such as
written instructions, timely notifications and adequate record keeping and
documentation.
.
The improvement of claims documentation and filing procedures through the
introduction of claims/change orders filing systems and the utilization of
electronic document management systems within organizations.
. The education of the contractor’s site team of fundamental contract principles, so
that the contract representative becomes aware of his company’s obligations
vis-à-vis the owner and consultant, and be cognizant of his scope of work under
the contract
.
The use of standard equations at contract formation to be applied for the
quantification of change orders during the project execution phase as a means to
resolve and mitigate disputes over change order pricing.
References
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en/countries/UAE/184821
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Falqi, I. (2004), “Delays in project completion: a comparative study of construction delay factors
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Environment, Herriot-Watt University, Edinburgh, September.
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Corresponding author
Amr A.G. Hassanein can be contacted at: mail@finbi.com