Definition of the Role
A Contract is a legally binding promise or agreement. For the Cost Engineering role related to Contract Dispute Resolution, the focus is on contracts connected with the development, design, construction, commissioning, operation and maintenance, modification to or decommissioning & demolition of infrastructure or facilities (“projects”). Relevant aspects may include the form of contract including risk allocation between the parties, the nature of the relationship between the parties, the processes of contract formation, contract administration and contract close out. Of particular relevance may be the cost engineering practices applied and documents evidencing the compliance or otherwise with the contract and with good contract management by the parties, including the planning & scheduling, estimating & cost reporting and other elements of general administration including timeliness of advice and responses.
Dispute resolution would generally include the preparation and submission, or the evaluation of, claims arising from works carried out in countries with common or mixed law (where common law is a part of mixed law). In addition, the role would generally involve close collaboration with legally qualified advisors familiar with the interpretation of the law of the relevant jurisdiction.
Description of Role & Typical Responsibilities
A career in Contract Dispute resolution usually starts after initial training in a discipline that includes elements of defining the structure, formation and administration of contracts. There are a number of routes, commencing with persons with either formal qualifications or extensive experience in one or more of:
- A cost engineering area such as estimating, cost control, earned value assessment, planning & scheduling, or risk management;
- Design or construction management;
- Professional engineer;
- Quantity Surveyor,
- Procurement specialist, or
As experience is accumulated, skills may be acquired in contract interpretation and in assessment of the adequacy and quality of the various cost engineering practices utilized in the execution of the works. Initially, this would be done by recognizing the need to have subject matter experts carry out such assessments, but over time, sufficient skill should be acquired to assess the presence of signals that indicate the need to call in such experts.
It is important that persons without very extensive, validated personal legal expertise do not fall into the trap of interpreting the meaning of contractual clauses. Such interpretation requires not only general experience in legal interpretation, but also specific knowledge of case law in the applicable jurisdiction. For example, both USA and Australia are common law countries with many interpretations in common, but there are some fundamental differences and these can lead to radical errors. Even lawyers with relevant international expertise in say, financial law, may be unaware of important differences between jurisdictions in certain principles in construction law.
How to become a Practitioner
Contract Dispute Resolution careers usually start from the discovery that the quality of the formation, administration and closeout of a contract is one of the keys to successful project delivery. Getting the best possible outcome under the circumstances that arise during the project life is most likely to occur if the parties to the contract are aligned in their commitment to the success of the project, have a common understanding of their respective roles, make each other aware of issues as they arise, and work promptly to resolve those issues within the framework of the risk allocation in the contract. Persons interested in this aspect of successful project delivery make it their business to learn from others with skills and knowledge in this area, and read extensively. There are also numerous short courses on particular aspects of the subject.
Different industry segments often use different forms of contract, and it is important to understand what contract forms are applicable when applying for a position.
Increasingly, employers may look for evidence of knowledge and capabilities not only in the project procurement and contract administration processes but also in dispute management processes.
- A very senior recognition can be obtained through AACE International’s Certified Forensic Claims Consultant (CFCC see http://web.aacei.org/certification/certifications-offered/expertise-certifications#CFCC ). Eligibility to apply for this depends on 12 years relevant experience in preparation and submission of claims, and dispute resolution (the experience cited must be centered on and deal directly with the prosecution, defense and resolution of claims and disputes), plus
- 4-year university degree
- 4 letters of recommendation from industry professionals to verify years of experience
- A current certification or license after education which must beone of a specific list.
- An electronic submission of an expert report submitted as evidence, a formal claim submittal, or a professional paper accepted for publication, for which authorship by the prospective candidate is verifiable, any of which must have been written within the 24 months prior to applyingto sit for the examination.
Candidates sit an examination for a maximum of 5 hours.
The Society of Construction Law (Australia) promotes the education, study and research in the field of construction law and related subjects in Australia and overseas and provides a forum for industry participants and thought leaders to connect and together initiate positive change in the construction industry for the benefit of the construction industry and public as a whole by influencing changes to legislation, policy and practice. It also brings people together for mentoring. See https://www.scl.org.au/about/objects
Persons looking to become recognised in this area of practise will often spend a period working in a specialised consulting firm, such as Hinds Blunden. ACES, as a Technical Society of Engineers Australia is able to facilitate Chartered Engineer status based on career expertise in Contract Dispute Resolution. See Chartered Engineer page of this site for more information.