![]() ![]() The New South Wales, Victorian, Queensland, Tasmanian, Australian Capital Territory and South Australian legislation goes further by also establishing a statutory procedure for a Contractor to claim and recover progress payments to which it is entitled. In addition to the contractual entitlement to progress payments contained in the relevant payment provisions for each delivery model, security of payment legislation in place in all States and Territories creates a statutory entitlement to progress payments as long as the requirements of the legislation giving rise to the relevant entitlement are satisfied. These details should be communicated to a Contractor by written as early on in the project as possible to minimise delays and potential problems occurring later. Further, the Contractor will also need to satisfy a number of conditions precedent before it will be entitled to submit any payment claims, but the requirements of each project will dictate the other details that the Contract Administrator requires to assess the claim. Ideally, there should be some discussion and agreement at the commencement of the project about the nature and extent of information to be submitted by the Contractor with each payment claim. In essence, the Contractor should provide the claims in a format, and with such backup detail as is necessary, to allow the Contract Administrator to readily establish the progress and value of the work done under the Contract during the relevant claim period. Whilst the Contract Administrator may probe and test the veracity and validity of the claim, it is to be remembered that the onus of proof (on the balance of probability) lies with the Contractor as claimant and the Contract Administrator should not attempt to “make the claim” for the Contractor. If there is any doubt as to the legal or factual basis for a claim, expert professional advice (be it legal, engineering, accounting or otherwise) should be sought. A Contract Administrator legally cannot disburse Defence money without a clear and substantiated legal basis for the claim. It is important for both Contractors and Contract Administrators to remember that Defence is neither obligated, nor in the position, to compensate a Contractor for an inadequate tender. The Contract Administrator must not merely acquiesce to demands of the Contractor in respect of payment. It is for the Contract Administrator to determine the value of the work completed in accordance with the Contract, notwithstanding the Contractor’s claim. ![]() ![]() The procedure for assessing payments under each delivery model is outlined in the flowcharts provided below in Part 37.7 of this Manual. Assessment of such amounts is to be carried out in accordance with the relevant clause for each delivery model. This clause sets up the contractual mechanisms for assessing the amounts due to the Contractor and other amounts under the Contract. ![]()
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