1. Clause 13.5 Provisional sum: this Clause contains two sub-clauses 13.5(a) and 13.5(b). We (Consultant) think that 13.5(a) applies to works which are undertaken by the main Contractor and that 13.5(b) applies to works which are undertaken by third party sub-contractors or suppliers.

The Contractor disputes our interpretation and says that 13.5(a) applies to work (any kind of works executed by anybody (main contractor or sub contractor)) and 13.5(b) applies to supplies (supply by suppliers (plant, material, services)).

2. Clause 13.3.4 states that “reasonable profit” shall be paid to the Contractor. We are unsure how to determine “reasonable profit”?

• What does “reasonable profit” mean?

• How is it determined and what does it include (overheads, profit etc)?

• If it means pure profit only, how does the Contractor recover his overheads?

• The Appendix to the form of Tender includes 12.5% for OHP for Provisional Sums. Is this applicable to both Clauses (13.5(a) and 13.5(b)) or to (b)? If (b) only, do we establish a new % or use the tendered OHP?

Could you please give us your interpretation of the above?

Suggested Answer:

Clauses 13.5.1(a) and (b): Your first query is about the meaning of Clauses 13.5.1(a) and (b) and what is covered by the Provisional Sum. I tend to favour your view. I think the correct interpretation is that (a) covers direct costs – i.e. work being provided directly by the Contractor and (b) refers to subcontractor or supplier costs i.e. for plant materials or services that the Contractor has to procure (“purchase”) from third parties. Essentially, 13.5.1(a) covers works (with a small “w”, including any Plant, Materials or supplies involved in those works) to be executed by the Contractor. 13.5.1(b) covers anything required for the Works (“Plant, Materials or services“) that is to be “purchased by” the Contractor.

Reasonable profit: Your second query is about the reference to “reasonable profit” in Clause 13.3.4. You will notice that this term used in the Yellow Book (or indeed in any of the FIDIC contracts) is not a defined term and is therefore to be given its natural, ordinary meaning. However, what I think is clear is that it relates to pure profit (and not overhead and profit or “OHP” as it is often termed). This is because “overhead” is separately expressly accounted for within the definition of “Cost” in the Yellow Book (and FIDIC contracts generally) (“Cost” means all expenditure reasonably incurred……..whether on or off the Site, including overhead and similar charges but does not include profit”). Equally, clauses that entitle the Contractor to profit separately use the words “Cost plus reasonable profit”.

What is “reasonable” will depend upon the particular context and circumstances of your contract. A starting-point for setting a reasonable profit might be to look at what rates of profit are charged in comparable contracts in your market. You may need to take into account factors such as availability of materials, supplies and manpower, and the level of any skill and risk involved in the works which are being costed. Sums which are wildly above or below the market norm might not be regarded as “reasonable”.

The Yellow Book standard form contract does not fix what a rate of reasonable profit is, but the FIDIC Contracts Guide provides guidance. The Guide suggests that if parties wish to specify in their contract the rate of what is a reasonable profit they could add an amendment stating that where the expression “Cost plus reasonable profit” is used, “reasonable profit” is a set percentage of that Cost. The Guide suggests this percentage as 5% of the Cost, which gives you an idea of the sort of rate of profit that FIDIC considers may be deemed reasonable. However, I still think that the reasonableness will depend on the particular market, type of contract, risks involved etc with which you are dealing. To avoid these kinds of arguments and uncertainty, I always advise both contractors and clients alike to agree the profit percentage up front before entering into FIDIC contracts.

Bear in mind that any abnormally high rate of profit claimed by the Contractor in its proposal for an adjustment to the Contract Price (discussed below) is likely to be questioned by the Engineer when he/she considers that proposal.

As the term “reasonable profit” only covers “pure” profit and not the Contractor’s overheads and other costs, the Contractor claims for its overheads and other costs by including them in its proposal for the adjustment to the Contract Price which he submits to the Engineer in accordance with Clause 13.3.1.

Your final question is about the sum for overhead charges and profit referred to in Clause 13.5.1(b)(ii) and how it applies to 13.5.1(a) and (b). You will remember from the answer to the first question above that (a) is work executed or supplied direct by the Contractor and (b) is Plants, Materials or services purchased by the Contractor. The price for these two items is calculated differently and is summarised below; the 12.5% applies to (b).

The price for (b) is calculated by adding together the actual amounts paid or payable by the Contractor for the Plants, Materials or services plus a sum for overhead charges and profit. The amount of overhead charges and profit is calculated as a “relevant percentage” of the actual amounts paid or payable by the Contractor. The relevant percentage is stated in the appropriate schedule; if there is no rate specified, the percentage to be applied is the rate stated in the Appendix to Tender which in your contract is 12.5%.

The price for (a) is calculated in accordance with Sub-Clause 13.3. Under the procedure in Sub- Clause 13.3 the Contractor submits a proposal for the adjustment to the Contract Price to cover the relevant work to be performed. The adjustment includes a reasonable profit (discussed above). The Engineer responds with approval, disapproval or comments. If the Engineer proceeds to authorise the relevant works he will agree the cost proposal made by the Contractor or, if he does not agree with the Contractor’s price proposal, determine the adjustment to the Contract Price in accordance with Sub-Clause 3.5. This clause requires the Engineer to consult with each party to the Contract in an endeavour to reach agreement. If agreement is not achieved, the Engineer makes a “fair determination” in accordance with the Contract, “taking due regard of all relevant circumstances”. Any disputes are settled in accordance with Clause 20 (Claims, Disputes and Arbitration).

Therefore, the short answer to your final question is that the 12.5% applies to (b) but in relation to (a) it is the Contractor who makes a proposal about the amount (which could be 12.5%, or a greater or lesser rate).

“Tests on Completion

The first 30 days shall be a monitoring period during which the Contractor sets up the operation of the plant and conducts his own water quality tests to confirm that the final effluent consent has been met. At the end of this period the Contractor shall notify the Engineer that the plant is complete and meeting the Process Guarantee which then shall be met by a further 30 consecutive days before Taking Over can take place.”

We have met the final 30 consecutive days successfully and want taking over. The Employer says we must complete the 90 days which takes us outside of the construction period and hence delay damages are being threatened.

I say we have satisfied the contract at the end of the 30 consecutive days and we should get Take Over even though it is not 90 days.

Have you any idea if we are right in our assessment?

Answer:
Firstly, a couple of brief provisos. I assume that you have made no amendments to the Yellow Book that affect this issue. I’m also assuming that, as you say, otherwise the works have indeed all been completed in accordance with the Contract.

Have the Tests on Completion been passed and are the Works ready for Taking Over?

Obviously your argument is that having satisfied the first 30 day monitoring period and then completed the further 30 consecutive day period and having notified the Engineer that the plant is complete and meeting the Process Guarantee, you have therefore satisfied the requirements for completion and Take Over.

Clause 10 – which deals with Taking Over – says that the Works must have been completed in accordance with the Contract and that a Taking-Over Certificate must have been issued. The Employer must issue such certificate within 28 days of an application if the Works are substantially complete in accordance with the Contract (i.e. apart from minor outstanding work and defects not substantially affecting the Works); otherwise the certificate is deemed to have been issued.

Crucially, “completion” for these purposes includes:

• achieving the passing of the Tests on Completion; and
• “completing all work which is stated in the Contract as being required for the Works to be considered completed for the purposes of taking over”.

So it all comes down to (1) what is required to achieve passing of the Tests on Completion and (2) what the Contract states needs to be completed to achieve take over.

Under the Yellow Book, “Tests on Completion” means “those tests which are specified in the Contract or agreed by both Parties…and which are carried out under Clause 9 [Tests on Completion] before the Works…are taken over by the Employer”.

Clause 9 goes on to spell out the process for carrying out these tests, which falls into 3 stages – pre-commissioning tests, commissioning tests and trail operation – the latter which is intended to show that the plant is operating reliably.

Ambiguous provisions

I think that the Engineer/Employer will forcefully argue that waiting for the 90th day to elapse is part of the “trial operation” and is required for you to pass the Tests on Completion. I agree that there is some ambiguity in the wording in Volume 3 of the Contract as it states: “At the end of this period the Contractor shall notify the Engineer that the plant is complete and meeting the Process Guarantee which then shall be met by a further 30 consecutive days before Taking Over can take place.” However, my own view is that the drafting of the full testing period is clear and explicit – “The test on completion duration shall be 90 days“. Bearing in mind that FIDIC explicitly states “The documents forming the Contract are to be taken as mutually explanatory of one another” I do not think that this wording is actually inconsistent with the words: “which then shall be met by a further 30 consecutive days before Taking Over can take place”. In my view, all the Contract is saying is that the actual commissioning tests period is 30 days but there is then a further 30 day trial operation period to ensure the plant is operating reliably. This is also consistent with the description of Tests on Completion (and the 3 stages) described in Clause 9.1.
Of course, it is open to you to request clarification on this point from the Engineer. Clause 1.5.2 of the General Conditions provides that: “If an ambiguity or discrepancy is found in the documents, the Engineer shall issue any necessary clarification or instruction.”

You do not mention if the Engineer in this case is an independent engineer or is part of the Employer organisation. Whichever is the case, he may well come to the same view as the Employer and, in my opinion, this would be consistent with:

• the express wording (“The test on completion duration shall be 90 days“);
• interpreting the documents as mutually explanatory of each other; and
• the 3 stage process of Tests on Completion which includes a “trial operation”.

Whether or not the Engineer is truly independent, Clause 3.5 applies when a party asks the Engineer for clarification and provides that he must consult with each party in an endeavour to reach agreement. If agreement is not reached, “the Engineer shall make a fair determination in accordance with the Contract, taking due regard of all relevant circumstances.”

The Engineer must give notice to both parties of the determination with supporting particulars. Each Party shall give effect to each agreement or determination unless and until revised under Clause 20 (Claims, Disputes and Arbitration).

What do you do now?

Whilst I think that the correct interpretation is that the testing period is the full 90 days, I am conscious that complying with this period will put you in delay and at risk of liquidated damages for delay. Therefore in practical terms, I think that you should at least make the argument that you have already substantially completed. I think that there is sufficient ambiguity in the Volume 3 wording to argue that the Tests on Completion have been completed and that you are entitled to issue of the Taking-Over Certificate. Therefore you should apply for issue of this certificate if you haven’t already done so (although if you haven’t already done so you will still have to wait at least 28 days before the Engineer is obliged to issue the certificate or you can argue that it is deemed to be issued).

Under Clause 10.1 [Taking Over of the Works and Sections], the Engineer is deemed to have issued a Taking Over Certificate if he fails either to issue a TO Certificate or rejects the Contractor’s application for a TO Certificate within a period of 28 days after receiving the Contractor’s application.

You have not said whether or not the Engineer has rejected the application. If he has not, and more than 28 days has elapsed since you issued it, then the TO Certificate will be deemed to have been issued on the last day of the 28-day period.

Of course, if you applied for the TO Certificate right before the end of the 30+30 days, then the Engineer has up to 28 days to issue or reject, and you are almost in the same position as if your completion test phase was 90 days. If you applied substantially earlier than that then it will make a bigger difference and might be the difference between completing on time or late.

If you are late, then there probably is no harm in making the application for a Taking-Over Certificate. Note that in accordance with Clause 10.1.3(b) of the General Conditions, if the Engineer wishes to reject the application, he has to give reasons and specify the work that is required to be done by the Contractor to enable the TO Certificate to be issued. Even if the Engineer has purported to reject your application, you might be able to argue that he has not done so in accordance with the contract, because he has not specified the work that is required to be done in order to enable the TO Certificate to be issued. Of course in my view, he is likely to simply point to the further 30 day trail operation period under the Contract.

Delay to Testing

Whilst I do not think you have a basis of claim (as my interpretation of the Contract is that you have not yet fully passed the Tests on Completion), if the Employer’s insistence on you waiting until the end of 90 days after the start of the testing period is not permitted under the Contract, there is potentially the right to claim for delay. Clause 7.4.5 provides that “If the Contractor suffers delay and/or incurs Cost … as a result of a delay for which the Employer is responsible, the Contractor shall give notice to the Engineer and shall be entitled to claim both an extension of time and “payment of any such Cost plus reasonable profit, which shall be included in the Contract Price” (Clause 7.4.5(b)). Equally there is the ground in Clause 8.4.1 (e), being “any delay, impediment or prevention caused by or attributable to the Employer, the Employer’s Personnel, or the Employer’s other contractors on the Site.” The Employer’s Personnel, as defined, includes the Engineer.

Any right to claim will be subject to strict compliance with FIDIC’s notice provisions in Sub-Clause 20.1 (Contractor’s Claims)). I have previously stressed the importance of getting your notice exactly right in the previous Q&A; click here to read more. After receiving this notice, the Engineer shall proceed in accordance with Sub-Clause 3.5 (Determinations) (see above) to agree or determine these matters.

One final note

Finally, do you have any minutes or notes of any discussions with the Employer about completion testing? If you do, have a look at them to see whether they clarify the position. Obviously it will be helpful if you have evidence that you and the Employer intended the tests to consist of the 30-day monitoring period plus the second consecutive 30-day period only. It is worth noting that FIDIC Yellow Book does not include an “entire agreement” clause precluding extra contractual documents/negotiations in interpreting the Contract. If you have clear evidence that the parties both intended the completion tests to last for 30 days plus 30 days (only) then you may be able to claim successfully that the figure 90 was inserted into the contract by mistake instead of 60, in the event that the dispute goes to arbitration.

]]> http://kluwerconstructionblog.com/2010/04/14/tests-on-completion-under-the-fidic-yellow-book/feed/ 0 http://kluwerconstructionblog.com/2010/02/02/ask-the-expert/ http://kluwerconstructionblog.com/2010/02/02/ask-the-expert/#comments Tue, 02 Feb 2010 10:44:58 +0000 Sarah Thomas http://kluwerconstructionblog.com/?p=346 Continue reading →]]> Question:
I am a project manager for the employer on a power plant project based in Europe. We have been on quite good terms with the contractor up until now. Last week the contractor sent us a claim for 12 weeks’ delay to the programme and for compensation costs (we are using the FIDIC Yellow Book (Plant and Design Build) 1999 form and English governing law). They are saying that dealing with contamination in the ground discovered in the last few weeks will cause a delay. We had a couple of site meetings with the contractor and sub-contractor about the programme and the potential delays, prior to the contractor sending the claim. I have two issues with the claim: firstly, we do not believe that the ground conditions will cause 12 weeks’ delay; our estimate would be closer to about 6 weeks. Secondly, the contractor’s written notice of claim is just a couple of lines in an email to me and I am not sure this counts as proper “notice”.
I do not want to jeopardise our relationship with the contractor, but obviously I am concerned to limit our exposure to any delay costs. I would appreciate any advice about how we can deal with this claim from our contractor.

Answer:
Let’s start by considering whether or not the contractor has given valid notice of the claim. In fact, even before we come onto that, I should just touch on whether or not the contractor has a claim in the first place. You do not say that you are disputing the existence of the pollution nor that it was “Unforeseeable” for the purposes of the contract (for the benefit of others reading this, “Unforeseeable” and “physical conditions” are defined in the FIDIC Yellow Book as not reasonably foreseeable by an experienced contractor by the date for submission of the tender and “physical conditions” means “natural physical conditions and man-made and other physical obstructions and pollutants which the contractor encounters at the Site when executing the Works”). Therefore as ground pollutants are expressly covered, I assume that you accept that the contractor has encountered unforeseeable physical conditions at the site which in principle give it the right to claim an extension of time and payment of costs under Sub-Clause 4.12.4 of the contract.
But Sub-Clause 4.12.4 makes that right to claim expressly subject to Sub-Clause 20.1. Sub-Clause 20.1 sets out strict time-limits for giving notice. Again, you do not say that the contractor’s notice was given late so I am assuming that you accept that it was given on time but I suggest that you check this carefully anyway. As a reminder, 20.1 requires the notice to be given as soon as practicable, and not later than 28 days after the contractor became aware, or should have become aware, of the event or circumstance giving rise to the delay. Note that this is days, not business days. You say that the pollution was discovered in the last few weeks so timing could be pretty tight. However, it is worth bearing in mind whether the Contractor has in fact given valid notice before the email. 20.1 talks about the notice needing to make a claim for extension of time and costs under Sub-Clause 20.1 and describe the event or circumstance giving rise to the claim. So the contractor can potentially fulfil this requirement in just a couple of lines and it is also not clear that he even has to issue this in a separate notice (i.e. separate from communications on other matters such as Programme, progress of Works, etc). Could any previous correspondence/documentation issued to the Engineer conceivably satisfy this requirement?
Also, significantly, I note that the email was sent to you. Was the Engineer copied in as well? Clause 20.1 actually requires the notice to be sent to the Engineer. You need to find out when, if at all, the Engineer received the notice and whether or not this was before the 28 day deadline. It is also worth checking whether your particular contract provides for notice formalities and whether this precludes email. FIDIC unamended simply says that notices shall be in writing and delivered by hand, mail or courier “or transmitted using any agreed system of electronic transmission as stated in the Appendix to Tender”. So you need to check this to see if email is allowed.
Sub-Clause 20.1.2 sets out quite clearly what is the effect of a failure to comply with this timescale: the contractor will not be entitled to any extension of time or costs and the employer will be discharged from all liability in connection with the claim.
In addition to the initial notice, the contractor must send to the Engineer a fully detailed claim which includes full supporting particulars of the basis of the claim and of the extension of time and/or additional payment claimed, in accordance with Sub-Clause 20.1.5. This must be sent within 42 days after the contractor became aware/should have been aware of the event or circumstances giving rise to the claim, unless any other period has been agreed between the contractor and the Engineer. The contractor is also obliged to keep such contemporary records as may be necessary to substantiate any claim (Sub-Clause 20.1.4). You will need to check whether or not these further obligations have been complied with in time.
Turning to your other issue with this claim – the length of the delay claimed by the contractor. As you know, the Engineer can respond with “disapproval” or with “detailed comments” if he considers that the delay claimed is too long. He can also request any necessary further information to help him assess the claim, but note that he must respond on the principles of the claim within the time limit set out in Sub-Clause 20.1.6, namely 42 days after receiving the claim or any other period he has agreed with the contractor. For that reason I am hoping that the Engineer’s assessment is well underway and even though there are queries about the validity of the claim, you need to make sure that this is the case.
Of course, he will also need to comply with Sub-Clause 3.5 (Determinations) which means he has to consult with both employer and contractor firstly to try and reach an agreement. This will be your opportunity to put forward your case for any notice non-compliances and regarding the length of delay impact. If the parties don’t agree he makes a “fair determination”. If at this point, you don’t agree with this determination it is always open to you to invoke the dispute resolution procedure and seek the decision of the Dispute Adjudication Board if there is one in your Contract.
To sum up, the contractor has to overcome several hurdles relating to the form, content and timing of the notice in order to benefit from its entitlements resulting from delays due to unforeseeable physical conditions. You will need to review the notice carefully against the contractual requirements referred to above and consider whether all the information has been provided in time, in the right format, to the right people. Given the clear language of Sub-Clause 20.1 it would be hard for the contractor to argue that compliance with clause 20.1.1 is not a condition precedent – i.e. if it does not comply, it cannot benefit from the relief. This strict approach was in fact adopted in a recent Scottish case. You may find that the contractor has not submitted a valid claim at all.  Concurrently, the Engineer will need to continue his assessment of the claim and preparation of his response in relation to the length of delay.

]]> http://kluwerconstructionblog.com/2010/02/02/ask-the-expert/feed/ 1 http://kluwerconstructionblog.com/2009/11/03/ask-the-expert-question-and-answer/ http://kluwerconstructionblog.com/2009/11/03/ask-the-expert-question-and-answer/#comments Tue, 03 Nov 2009 13:00:54 +0000 Sarah Thomas http://kluwerconstructionblog.com/?p=137 Continue reading →]]> Our Ask the Expert function will be available for you to use shortly. In the meantime, here is a question which was recently posed to us, that we thought you might find interesting.

Question: I’m a contract manager for the prime contractor on an African project for which we are using a relatively unamended FIDIC Red Book 1999 form. We’ve recently been plagued by weather which I and my colleagues think is completely out of the ordinary and which has delayed our work on site to a degree. In the last couple of project meetings I mentioned that the rain is causing us some problems and that was recorded in the minutes. I also made sure that in our last progress report I put in a reference to the weather under the “Causes of Delay” section. In our last project meeting the engineer on the project told me that rain like this at this time of year isn’t exceptional – we strongly disagreed on the point.

We’re thinking of putting together a claim in any event for extension of time, as we have liquidated damages on the project for late completion. Have you got any tips about what we should be keeping in mind to give us the best chance of success?

Answer: I’m sure as a contract manager using the FIDIC Red Book 1999 form you are well aware of the very strict notice requirements for submitting a claim which a contractor has to comply with and that failure to do so can debar you from claiming. However, for everyone else reading this I will explain anyway. Clause 20.1 (Contractor’s Claims) of the Red Book provides that a contractor has to give notice to the Engineer “describing the event or circumstance giving rise to the claim”. Your notice has to be given as soon as is practicable and not later than 28 days after you became aware of (or should have become aware of) the event giving rise to the claim. Failure to do so in 28 days will disbar you from any entitlement (and the wording is intended to capture not just claims under but also in connection with the Contract).

There are also other procedural requirements set out in clause 20.1 that you need to make sure you are complying with from the outset in preparing your claim (such as following up with more detail within 42 days of the event). If you aren’t totally familiar with clause 20.1, I would encourage you to go away and read it before you do anything else.

So, have you given sufficient notice under the contract? I would say at the moment that this is questionable – you have not written directly to the Engineer using the formal notice procedures under the contract. You have mentioned it to him orally and it has been recorded in minutes and in a progress report, neither of which are necessarily delivered in the proper way to the Engineer. Arguably you also haven’t sufficiently described “the event or circumstance giving rise to the claim”. Without knowing how long this weather has persisted (and when you were first aware – or should have been – that weather will delay completion (i.e. your basis of claim)) or exactly what your notice requirements are, I would advise you to submit formal notice at your earliest possible opportunity, just to be on the safe side. Note that if your minutes of meeting are countersigned however, in my experience your case would be stronger – as that could be considered as adequate evidence of sufficient notice.

Under the FIDIC Red Book you should be able to claim an extension of time for “exceptionally adverse weather conditions” (clause 8.4(c)). The FIDIC form itself (unlike NEC which applies a test of a less than once in 10 years limit), does not provide guidance on what constitutes “exceptionally adverse”. It will therefore be a matter of judgement, looking at the current weather conditions in comparison with historical weather data for the location of the Project to see whether (1) exceptional and (2) adverse.

As a lawyer I can’t stress enough how important it is for you to keep detailed records about how the rain is affecting your works (cause and effect), details of any mitigation and of every single conversation your team has with the project owner, the Engineer and with your subcontractors so that you maintain good records – not least to comply with your continuing obligations under 20.1.

Note that there is a less likely chance for you to claim under clause 17.3/17.4 (Employer’s Risks) for operation of the “forces of nature which is Unforeseeable or against which an experienced contractor could not reasonably have been expected to have taken adequate preventative precautions.” Unforeseeable is defined as not reasonably foreseeable by an experienced contractor by the date of submission of their tender for the contract. Firstly, I doubt rain would be considered unforeseeable (though of course I don’t know where in Africa your project is based) so again, the amount of rain would need to be so exceptional as to not be “foreseeable”. Secondly, delay to the Works alone would not suffice – to claim under this clause you would need to show actual loss or damage to the Works, Contractor’s Documents or Goods. I don’t think this is necessarily the clause that could apply to the scenario you describe.

And some final thoughts and tips:

1. Governing law may affect enforceablity of Clause 20.1 notice bar

You have not mentioned what is the governing law of the Contract. The enforceability of the condition precedent clause in 20.1 can depend upon what is the governing law. For example, in some civil code jurisdictions such notice bar clauses have in the past been successfully challenged under the mandatory laws of that country on the basis of being contrary to the notion of good faith. You would also have some ammunition here given that you can argue that the Engineer has known for some time, however informally, that you are suffering due to the weather.

However, under English law and other common law jurisdictions, the clear wording of Clause 20.1 is likely to be given effect.

2. Attracting privilege early on

If it is already apparent that there is likely to be a dispute which may end up in legal proceedings (because of the potential sums involved) there are some practical tips on how you ensure that appropriate correspondence (discussing the prospects of or preparing the claim) as opposed to administering the Contract (which is obviously ongoing) are protected by legal professional privilege:

– Discourage emails between your company’s team and other members of the project team about this subject;
– Direct that all emails on this subject be sent to a specific member of your legal team (and copied to your operational personnel to avoid any inconvenience). It might be wise to head all such emails, notes etc. “Strictly Privileged and Confidential – Prepared for Legal Advisers”
– You may also wish to head any reports etc you prepare for internal purposes in relation to your claim “Strictly Privileged and Confidential – Prepared For Legal Advisers” and send them to your legal team for the files.

I appreciate that this advice may appear to be a little heavy handed for this early stage in the claim but if the dispute develops into a full blown dispute then your bosses are going to be grateful that you took all these precautionary steps early on.

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