Commercial Management; from Procurement through to Disputes

With 40 years of experience are confident that we can assist or solve your commercial needs.

Changing vogue in procurement together with more collaborative working arrangements creates greater demands on a projects Commercial Management resources.

Clayton Consult has a range of services that are flexible and innovative but which are still based on solid foundations, underpinned by traditional skills and experience. These skills offer a complete commercial management solution encompassing all stages in the development and implementation of a project and the ongoing management of an asset.

Quantity Surveying and Commercial Management

Clayton Consult act as quantity surveyors and commercial managers for clients, contractors and sub-contractors on a wide variety of projects and programmes of work that encompass building, mechanical and electrical services, civil engineering, water, rail and telecommunications.

Acting in this capacity our role is to manage and enhance our Clients commercial and contractual position and to liaise with, and advise other members of the professional and/or contracting team for the benefit and success of the project. The role can include:

  • Estimating and cost planning
  • Procurement advice
  • Preparation of tender documentation
  • Cost control and reporting
  • Contract administration
  • Payment recommendations
  • Evaluation of variations
  • Ascertainment of loss and expense
  • Contract advice and dispute resolution
  • Negotiation of final accounts
  • Specialist services such as dispute resolution, risk and value management

On larger projects and programmes of work these services are often undertaken within the Client’s commercial management procedures as part of a project management team. Common procedures are often adopted to ensure uniform reporting of progress and costs.

In carrying out this role Clayton Consult analyses the requirements of each project and tailors the work such that the Client achieves value both in terms of the service itself and more importantly in the success of the project as a whole.


Preparing Interim Valuations

Clayton Consult are adept at preparing valuations be they complied on the basis of cost, measurement, stages, milestones or otherwise. They understand the mechanics of “Amount Due” and have considerable experience in Methods of Measurement. Proper payment is a key issue within the construction industry and the widespread abuse of the payment process led to the government providing rules and remedies through the Housing Grants, Construction and Regeneration Act 1996 as amended by The Local Democracy Economic Development Construction Act 2009.

The Acts provide that all construction contracts should have a compliant payment mechanism that allows the party receiving payment to know in advance when and how much they will be paid. It also provides for a formal notice procedure if any monies are to be “withheld” or “payless” and gives the party receiving payment the right to suspend work if proper payment is not made and also to refer any amount that is in dispute to adjudication.

Adjudication is a form of dispute resolution in which a nominated third party (the adjudicator) decides the matter referred within 28 days, subject to any extension to this time that the parties might allow in accordance with the adjudication rules.

It is important, therefore, that proper payment is made in accordance with the contractual payment provisions. The provisions of most standard forms of construction contract now incorporate compliant payment mechanisms in accordance with the Act.

Clayton Consult ensures compliance with the payment provisions in valuing the amounts due, adhering to the payment timetable and, where necessary, in giving the notices required to legitimately withhold payment.

Negotiating and Agreeing Final Accounts

The final account sets out the amount to be paid on completion of a project taking account of the basis for reimbursement and any adjustments provided for in the contract.

The final account process generally involves determining and agreeing the value of changes and ascertaining any entitlement arising from any failure by either of the parties to fully comply with their obligations.

Clayton Consult seeks to agree accounts progressively as and when entitlement arises as part of the costs control process and endeavours to settle final accounts at the earliest opportunity. The final account statement is signed and provides a fully substantiated and auditable build up of the account.

Construction Project and Commercial Helpline

As all of our existing Clients will know to their benefit, we have always been willing to offer initial, non legal, advice over the phone on any specific matter at no cost.


Delay Analysis

Usually with a back to basics approach Clayton Consult can effect delay analysis using the correct delay analysis method be that As Built But For, As Planned Impacted, Time Slice or Windows Analysis. The delay analysis will be based up upon investigating and evidencing Cause, confirming the extremely important Nexus and finally demonstrating the Effect. This is also undertaken with careful consideration to the ever-changing Law and cases such as: Royal Brompton; Adyard; John Doyle; City Inns; Malmaison and Walter Lilly.

Dispute Avoidance

Clayton Consult actively manages project relationships and construction contracts so as to resolve difficult issues before they turn into protracted and expensive disputes wherever this is possible.

The practical experience collected through numerous Adjudications, Litigation and Arbitration ensures that Clayton Consult work hard to avoid a Dispute rather than considering them as a “panacea”.

As such we are keen to be involved in contentious matters prior to them escalating to dispute and the inevitable costs exorbitant expense and wasted time that arises in Disputes.

Differences between contracting parties must be expected and procedures put in place to address difficult issues at the earliest opportunity. Such procedures can become part of the formal contract between the parties or they can support the procedures set out in standard forms of contract.

Where disputes can be resolved directly by the parties themselves this often helps to maintain important commercial relationships. The setting-up of dispute avoidance and resolution hierarchies can help the parties to resolve disputes themselves by first recognising that a dispute or difference exists and then by addressing it at an appropriate level. Such a hierarchy might comprise the following provisions:

  • Negotiations between project team members.
  • Negotiations between senior managers.
  • Discussions between project board members (if such a forum exists).
  • Facilitated negotiations with a neutral third party (Mediation).

Clayton Consult has experience in establishing such dispute avoidance and resolution hierarchies. Affiliated staff who are accredited mediators can facilitate negotiations in a structured manner to assist parties in coming to their own agreements.

If parties cannot resolve differences between themselves and a more formal dispute resolution procedure is required, or forced upon a party, then Clayton Consult are experienced in representing parties in both adjudication and arbitration. Clayton Consult have no shortage of affiliates who are adept in and specialise in construction law and contracts and can provide expert legal advice where this is required.

Dispute Resolution and Planning

This highly specialised area is usually referred directly to an affiliated business or organisation more experienced and practised in Disputes. Occasionally, small non complex disputes will be managed by Clayton Consult.

However, Clayton Consult do understand the different Disputes Resolution Procedures and the benefits and pitfalls of each; Facilitation, Mediation, Conciliation, Adjudication, Arbitration or Litigation. Understanding how Disputes arise, and that they commonly serve to make the lawyers richer, Clayton Consult provide advice and support in matters, prior to them escalating to dispute, be that through preparing claims or defending claims.

Typically a standard form of construction contract will provide for disputes to be referred to:

  • Adjudication
  • Arbitration or Litigation

Adjudication is a rapid form of dispute resolution in which an adjudicator makes decisions on matters referred to him within a period of 28 days. The adjudicator’s decisions are binding unless a further ruling is given in arbitration or litigation. Although decisions of the adjudicator are not final, the majority of disputes do not proceed further at least on a formal basis.

The common feature of the dispute resolution methods set out above is that they all involve a third party making decisions on behalf of the parties. The person making the decision can only decide on the basis of the party’s legal entitlements and cannot take account of non-legal issues that might help to resolve disputes (such as the offer of future work).


Claim Preperation or Defence

Claims are an inherent part of most projects, are defined as “the assertion of a right to something (usually from a contentious point)”. Most likely this will be a financial claim made against the opposing party although time and delay claims are frequently dealt with.

Clayton Consult have been dealing with claims and regularly prepare and defend claims. Typically, upon receipt of an instruction to pursue or defend claims we undertake the following tasks as appropriate

  • Preliminary investigation into the merits of the case.
  • Provide advice and written opinion on the legal and commercial support for the claim.
  • Advise on the best course of action
  • Consider documentation and substantiation.
  • Discuss the claim with relevant members of staff.
  • Prepare documentation for use in the dispute including stating the contractual position from our client’s point of view, programmes, schedules, analysis of cause and effect.
  • Research and deal with issues that arise during attempts to resolve the dispute.
  • Undertake and advise about negotiations and tactics for the successful resolution of disputes.
  • Provide advice to our clients at each stage as to the prospects for the future course of the dispute.

It is our experience that most claims can and should be resolved without recourse to formal proceedings and whenever possible that will be achieved. An essential element of our professional role is to seek to resolve the issues in a manner most favourable to our client, or at the least to be able to fully investigate the other sides’ case and to establish what can be achieved prior to formal proceedings. Against that background we are then able to provide reasoned advice setting out what further action may be taken, the risks and the timescales.

One advantage of using Clayton Consult in claims situations is that, having gained the benefit of the knowledge from the claims process itself, this allows for the cost effective management of the dispute and continuity of approach should the matter escalate to formal dispute proceedings.

Drafting and Vetting – Contracts and Sub-Contracts

When instructed to undertake drafting or vetting of contracts we find that our understanding of the law, combined with our in depth commercial and constructional knowledge allows us to ensure that terms are both relevant and consistent with the commercial aims or considerations of our clients.

It is insufficient in our experience to be able to undertake contracts drafting or vetting unless it is structured to suit the realistic expectations of our client and to allocate real risks against the background of the construction process.

Whenever we are asked to advise on tender documentation we always ensure that such advice is couched in terms which will allow our clients to readily appreciate the effective risk he is taking on board and so to order his commercial affairs accordingly. Nevertheless we also acknowledge that legal comment for the sake of it at tender stage may preclude successful bids which are of course the life blood of any company and so we advise accordingly.

Our background also allows us to structure comprehensive systems of contract and sub-contract procurement documentation to suit the industry, practical constraints, resources and administration.

This is also evidenced by the procedural guidance which we are also often asked to provide in association with terms and conditions.

The services we provide in this context include:

  • Drafting Main and Sub-Contract documentation.
  • Vetting of Contract terms at tender stage so that appropriate commercial decisions may be made.
  • Advising on compatibility of Main and Sub-Contract forms.
  • Advising on the relationship of Contracts, law and quality assurance procedures.
  • Vetting Consultants agreements.
  • Vetting domestic and international joint venture agreements.
  • Vetting collateral warranties, Performance Bonds and guarantees.


Advice, Mentoring and Coaching

In certain circumstances it is too late for formal training but the matter has not matured sufficiently to deploy external consultants. Often what is needed is a mentor who is able to give practical feedback and support in live situations.

In order to assist our regular clients to avoid problems or to resolve them at the earliest opportunity we encourage clients to contact us for free telephone advice. We also provide regular updates of relevant legal cases, statutes and standard form contracts in order to keep our clients up to date.

Clayton consult provide dedicated highly knowledgeable and experienced professionals to provide advice in live situations. Don’t be frightened to ask! By speaking to us we can ensure that a business relationship arises and this leads to:

  • gives personal and constructive long-term support to individuals
  • provides independent advice
  • assists in clarifying the issues, understanding the potential risks and rewards of options and in developing practical decision making strategies
  • offers an external view based on an appreciation of project and construction related issues and law
  • can help identify concerns that might otherwise be overlooked
  • can raise alternative solutions