On the same project
These disputes usually arrive together
A deduction of liquidated damages is often met with an extension of time. A missing certificate is used as a reason not to pay. Retention and back-charges are raised in the same correspondence. We read the contract first, and then advise whether the step is a contractual claim, a payment claim under CIPAA, or both.
Time
Extension of time
The claim is prepared from the work programme and from events of delay beyond the contractor’s control. It is commonly raised in answer to a deduction of liquidated and ascertained damages.
Liquidated and ascertained damages
We examine whether the contractual machinery for imposing those damages has been complied with. A deduction made outside that machinery may be challenged. CIPAA is not a procedure for recovering liquidated damages as payment for work done.
Money withheld
Certification
Late certification, or a failure to certify, is often the means by which payment is deferred. We identify the provision that obliges certification and payment. The absence of an interim certificate does not, of itself, prevent a payment claim under CIPAA. Section 5 does not require a certified claim.
Retention
Retention withheld without a contractual basis for doing so is identified against the release provisions in the contract, and advice is given on the steps available to obtain it.
Back-charges
Set-off and back-charges are considered only so far as the contract allows them to be raised. The relevant clause is identified before any response is settled. In a CIPAA reference, a set-off may reduce the claim, including to nil. It does not produce a decision in favour of the responding party.
Termination
The notice
Advice is given on a termination that has been issued, or on whether a right to terminate has arisen. The notice must follow the clause under which it is given.
Money still outstanding
A termination, or the threat of one, does not dispose of a sum due for work done. That payment dispute may still be referred under CIPAA.