The contract is very specific on how we are obligated to address changed conditions. We are required to provide “written notice” of the changed condition within 21 days, (or the time frames specifically outlined in your contract), after the occurrence or within 21 days after you first recognize the changed condition. The contract does not give you the option of verbal notification. All notification must be in written form even if you are accused of putting together a “claim.” When asked not to provide written notification we should always respond by stating that “the contract requires me to do so.” Once we overcome this, all too common, hurdle, addressing changes to the work will become routine and, as importantly, you will be perceived as a professional and respected for the way in which you approach your work.
The word “claim” can have ominous overtones, but, in essence, it is only a request for compensation arising from changes to the contracted work. If the owner’s representative issues an RFI or CCD that increases the amount of framing, drywall or taping to the project, your cost proposal for the change is nothing more than a claim, as a matter of right, for payment to perform the additional work.
Any change to the contract documents, whether a simple increase in units or, as in this case, related to COVID-19, provides you with an opportunity to review those changes or conditions for additional costs and to submit a “claim” for payment. Treating impacts to the work as a change order request is no different than a change order request for added units/material and, by addressing those costs as they occur provides you with the opportunity to receive equitable payment and to avoid an untimely and difficult claim. The NWCB Labor Productivity publication provides explicit information on recognizing and addressing costs associated with impacts to productivity.
COVID-19 is going to present us with extraordinary challenges, and one of the most pressing challenges will be towards recovery. To that end, the NWCB Labor Productivity Study can be used to provide the contractor with very specific mathematical equations to estimate the potential impact and resulting costs, to supplement the documentation, and to establish the certainty and extent of impact to productivity suffered by the contractor.
While the methods described in this and other industry studies may provide a means for estimating potential costs, it must be clearly understood that these methods serve only to calculate a reasonable cost estimate and not real costs. Specific project documentation is the only definitive means to establish or prove that the contractor has suffered actual or real costs and that compensation is warranted. The contractor must provide timely, written documentation, in conformance with the contract documents, that substantiates the claim that factors outside the contractors control have impacted the contractor’s ability to execute the work as planned and as contracted to perform. Recovery, especially in these times, may prove to be very challenging, and to increase your chances at success, the Northwest Wall and Ceiling Bureau strongly recommends that legal counsel be consulted.
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