CEES (short for Cause, Effect, Entitlement, and Substantiation) is the backbone of a successful construction claim. It is a simple, structured framework that parties need to adhere to when presenting construction claims.
In our latest article, we unpack:
1. What CEES actually means in practical terms.
2. What contractors must deliver for a credible claim.
3. Common pitfalls that weaken a claim’s foundation.
4. Challenges faced when defending against poorly prepared submissions
CEES – The Four Pillars Of A Construction Claim
Construction claims require the demonstration of four key parts by the pursuer of a claim (claimant). The acronym CEES refers to Cause, Effect, Entitlement, and Substantiation. If any one pillar falls, the construction claim will likely fail.
CEES has become widely used in the industry and has gained popularity through the efforts of Andy Hewitt. Contractors, owners, subcontractors, or any other entity working in construction-related fields should all have familiarity with these four pillars; if any one pillar falls, the construction claim will likely fail.
The most difficult part of a construction claim is the causal link or nexus between ‘Cause’ and ‘Effect’. This can require substantial evidence beyond an anecdotal description. Below is a simple example of how CEES should work.
Cause
The owner was obligated to provide access to the project site on a certain date. However, access was provided to the contractor 15 days later than originally agreed (access is a critical activity). This 15-day delay resulted in a claim for additional compensation and an EOT.
Effect
The contractor could not gain access to the work site for 15 days and so would incur the following costs:
- Contractor’s own costs during this no access period such as indirect/ direct/ equipment / storage/ standby costs etc.
- Contractor’s own costs for late delivery of the project (15 days past the agreed substantial completion date). These costs may also include liquidated damages if these are part of the contract terms.
These costs would make up the basis of the compensation claim.
Entitlement
The Contract contains a provision for ‘delay beyond the contractor’s control’ or for ‘delays specifically related to access’ or the ‘provision of Owner-provided items’, and these clauses provides remedies for such situations. This act or omission by the owner entitles the contractor to an EOT. The contract also entitles the contractor to additional compensation provided the contractor provides ‘written notice within 10 days of the delaying event commencing.’
Substantiation
The contract contains a milestone date for ‘owner to provide access’, this is repeated in the ‘owner approved schedule’, and various other records that the contractor has compiled and submitted along with the claim. This milestone date has also been discussed in meetings and recorded in those respective minutes. The contractor has also provided updated schedules retaining the planned and agreed logic showing the stated impact to the critical path along with a schedule narrative.
The above example ticks all boxes, but does the story typically end there? Maybe not.
Possible challenges to CEES
- Was this owner caused access to site delay foreseeable? Was this previously discussed in meetings? Could the contractor have mitigated their mobilization plan and therefore their costs.
- Was the contractor ready to mobilize?
- Did the contractor prepare and submit a mobilization plan/other stipulated documents that may have prevented them to mobilize?
- Are the assertions true/factual? Was the contractor in any way responsible for late access?
- What was the contractor’s plan before this ‘event’? How has this plan change?
- Did the contractor seek to mitigate the damages claimed such as off hiring equipment?
This list could go on for pages, and the analysis may result in the owner providing an EOT and costs, or likely it could result in costs less than what the contractor claimed. Either way, it is in the owner’s best interest to undertake their due diligence and not take the contractor at face value.
In the words of Ronald Reagan, “trust but verify”. An owner may not be negotiating nuclear arms with the Soviet Union but they should be aware that contractors frequently seek changes or claims.
Access Construction Claims Training is a new company founded by Niamh Ní Chróinín and Michael Creedon. We provide bespoke claims training for those working within the construction industry, including contract and change management, Construction claims awareness training, claims pursuance and analysis.
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Authored by
Michael Creedon and Niamh Ní Chróinín
