A request for payment can be called many different things, a payment claim or a progress claim or a progress payment or an invoice or a simple email requesting payment of an amount can be what the Act considers to be a Payment Claim. Does the claim need specific information ? Yes, the Payment Claim must contain particular information, which is a requirement under the Act. A Payment Claim must;

1. Be a written document.
2. Identify the construction work or related goods and services that is being claimed for. Here it must be quite specific in the description such that there can be no doubt as to what’s actually being claimed. Cases have been lost through poor descriptions by payment claims being found to be invalid.
3. State the amount being claimed that is payable.
4. Request that payment be made for the claimed amount.
5. Be correctly served on the person / party liable to pay.
6. Only include for work up to and including the reference date.
7. Only include one claim per reference date.
8. Can include previous amounts claimed in prior payment claims which remain unpaid.
9. Be accompanied with a supporting statement.
10. Be given within final time limits. BIF Act s68 & s75

What now ? After the correct service of a Payment Claim the Respondent has an obligation to provide a Payment Schedule within the timeframe in the contract or 15 business days, whichever ends first. Implications on the Respondent should they choose not to provide a Payment Schedule are;

• The respondent is liable to pay the full amount claimed in the payment claim. BIF Act s77(2)
• Grounds for disciplinary action under the Queensland Building and Construction Commission Act 1991.
• A maximum penalty for not providing a payment schedule is 100 penalty units. BIF Act s76(1)

However, the respondent is not required to provide a payment schedule if they have paid the full amount claimed by the due date. So what does point 1 really mean about being liable to pay the full amount ? Well to say that respondent is liable to pay the full amount of the payment claim is still subject to the Adjudicator valuing the work. It’s not an automatic rubber stamp that the claimant is actually entitled to the full amount or that the amounts claimed have been valued correctly in accordance with the contract. That’s the job of an Adjudicator to determine. How to make bullet proof payment claims

1. Understand ahead of time if your Contract or Work falls under the Building Industry Fairness Act 2017.
2. Ensure you know the timeframe and reference date for which you can claim for work performed.
3. Make sure you only claim once per reference date.
4.  Be sure that you clearly describe the work performed that you are claiming down to specific detail. Include back up and supporting documentation to prove up why you are claiming the amounts that you are, including calculations so the respondent and more particularly the Adjudicator can clearly determine how you have claimed in the possibility of an Adjudication Application being made. Backup documentation can include photographs, project quality documentation etc…
5. Attempt to comply with any other reasonable requests from the respondent on supporting documentation. This will assist the respondent determining the eligibility and validity of your claim.
6. Make sure you are within time from the completion of construction or if it’s your final claim.
7. Make sure the Payment Claim is served on the correct person / representative as defined in the Contract. Correct service is an essential requirement for a valid payment claim.
8. Be aware that if you do not provide and serve a valid payment claim and you encounter a payment dispute, your chances of a successful Adjudication Application are likely to be low and a decision of No Jurisdiction is possible.
9. Before submission always attempt to reach agreement with the Superintendent on the valuation of the payment claim items and at least understand which items maybe an issue such that you can address additional information requests prior to submission.
10. Even for contentious items, attempt to reach a minimal amount per item that is not in dispute such that you can narrow the valuation difference and number of issues in dispute.
11. Use the same contract valuation template as to that of the respondent so that you don’t have differing formats, names and potential valuations already claimed and paid that confuse matters.
12. Make sure you include your supporting statement. There is a maximum penalty of 100 penalty units should you not do so. However not including a supporting statement will not invalidate your payment claim under the Act. BIF Act s75(8)

Sometimes when starting a Project the original contract progress claim format and claimable items list is just not conducive to making progress claims simply and in the way in which you are going to perform the work. Don’t be afraid to perform a variation together to reframe the contract progress claim format into something that is more usable for both parties in the way in which the money will be claimed and work performed. However this should be done prior to any claims being made such as to limit any potential confusion. Finally, be proactive and never let a Payment Claim go out that you don’t know what might be on it or without having first had the discussions and agreed a valuation and an amount for each payment claim line item or at least understand where you and your Client may have a difference in valuation. This is just good old school contact administration and Contract set up in the first instance. Where you do have a valuation that differs, make sure you stick to the Contract in valuing the work and provide a logical, clear and comprehensive supporting documentation and calculations for how you came to that valuation. Doing so can make your life so much easier later on. If you would like to learn more about how to structure your Contract progress payments in such a way so that you minimise your chances of having your claims withheld and having valuation problems or if you would like to know exactly how to prepare a Payment Claim, get in touch and we can assist by either performing the work on your behalf or training your staff on what to look out for and how to do what we do. Want to know more ? Check out some of our more detailed information on Adjudication here. We have put together a comprehensive guide in 7 parts. You can download all of them as a consolidated paper from the last article. Read the next one here.