Your client can disagree?
You betcha! Some clients are just wired this way: the first thing that they do is to take exception with your RFI. And with some clients, it doesn’t matter whether your RFI is logical or not-they’ll let you know that it is out of line. Don’t get upset. This is just the way they do things.
So where are we, now? Well, the client’s own contract docs most likely require that any change to the work has to be ordered in writing. And if the docs don’t say so-they should. Make certain that, from now on, your own docs do require this! Common sense and the survival of your business require that any change be put in writing, regardless of the hassle.
“The right merchant is one who has the just average of faculties we call common sense; a man of a strong affinity for facts, who makes up his decision on what he has seen. He is thoroughly persuaded of the truths of arithmetic. There is always a reason, in the man, for his good or bad fortune in making money. Men talk as if there were some magic about this. He knows that all goes on the old road, pound for pound, cent for cent-for every effect a perfect cause-and that good luck is another name for tenacity of purpose.” Ralph Waldo Emerson
At this point, we can not yet proceed. Neither “side” has agreed to anything, except that you both acknowledge that the client wants some work done. You have the skill, and you also have the belief that the work is outside of your scope. What to do?
First, remember that the only person holding all of the cards is you-at this moment. The client is probably in a hurry. Time is likely on your side-you didn’t do anything wrong; you didn’t leave out the detail from the drawing; you aren’t the one who dreamed up this change.
“Confidence is contagious and so is lack of confidence, and a customer will recognize both.” Vince Lombardi
So, be nice, be polite, but be firm. Remind your client that you are not allowed to proceed with any change until directed in writing. You might also say to your client something like, “Would you like me to prepare a quote for you?” Once you say this, your client has two likely responses: one, “Yes, please do that”, or, two, “You don’t need to send me a quote because that work is part of your contract.” Those are the two major responses. Let’s look at each.
With the first response, where the client asks you to prepare a quote, realize that what you have just done is to offer what salespeople call a “trial close”. You are throwing out an idea-the idea that you are to be paid-and are hoping that your client gives in and says “okay”.
The second type of response–where the client maintains that the work is already in your contract–is a bit trickier. Nonetheless, there is a clear-cut procedure which we will follow. This is the Full Contact PM approach (see Appendix D for sample letter), and it will pay huge dividends if you follow it. The approach, in which you will write a “Winning Letter” and fax/e-mail to your client, goes something like this:
“Mr. Client, we seem to be at an impasse. You believe that the work is included in our contract, and we believe that it is not. Fortunately, your contract has a procedure for dealing with this issue, and we are required to abide by it. Basically, you have to direct me, in writing, to proceed with the work. Once you have so directed me, I am legally obligated to proceed. However, we both understand that, in this case, the work being performed is under dispute. To protect the rights of both companies, we will proceed on a ‘claims basis’.
“This means that we will keep track daily of the costs of the work. My foreman will give you a daily work ticket to review and sign-also daily. Please review each ticket for accuracy before signing it. At this point in time, you are merely agreeing that certain of my employees worked on this disputed item, and certain equipment and supplies were used on it, on a given day.
“The value of these daily tickets is that, should we not reach any kind of agreement on who has responsibility for this disputed work, and we have to later go to arbitration, we will then have a clear picture of exactly what was involved in the work, with respect to labor hours, equipment and materials. And if we come to some kind of agreement prior to that, then these daily tickets can be discarded. Again, they protect both of us, should they be required later.
“In any event, per your contract documents, you must direct me in writing to proceed, and tell me on which basis I am to proceed: lump sum, T&M, or on a claims basis. If you would like me to provide you with a lump sum quote, I will be happy to do that.”
Now, having just read through this, realize that you need to decide how you want to proceed. If you are unwilling to fight over this issue, then proceed with the work. Perhaps, if it is a small issue, you might want to let the client know that, in an effort to keep the project moving, you will do the work, even though you believe it to be out of scope. What you are doing here is trying to build up some good will, hoping that you can use it to your advantage on the next issue.
“One thing I never want to be accused of is not working.” Don Shula
If you strongly disagree with the client’s position, then you must tell your client that you will be proceeding on a claims basis, even though you are in disagreement. You recognize that you will proceed per the provisions of the contract, but that you are preserving your claims rights.
In the unlikely scenario where your client plays hardball, and refuses to acknowledge your letter, you probably need to force the issue. Ask your client to fax or e-mail written direction. If the client will only communicate with you by phone, take another step. You want it well established that you are proceeding on a claims basis. Send a letter via overnight carrier-something that must be signed for-and remind your client how you are proceeding. Warning: if you don’t take this step now, and just have your troops begin this extra work without it, you may well forego your chance to collect on it later.
What you may also find, once you “play” the game this far and this effectively, is that your client will see that you are all business. Once that is accomplished, your client may ask you to provide a quote, or to revise your previous quote, in an effort to complete this transaction. I’d like to suggest that you reward your client for finally seeing the light, and try to offer something that is more than fair to the client. It’ll demonstrate that you are reasonable, and also a “team” player. This will likely go a long ways towards resolving the next issue.
“Baseball is ninety percent mental. The other half is physical.” Yogi Berra
Plus, truth be told, you just saved yourself a ton of money in battling this through to a claim or some kind of legal action. Be glad. You are way ahead of where you were. You’re going to get paid-sooner rather than later-and you know what the amount is, rather than just having some judge or arbitrator require later that you “split the costs”. Oh, yeah-that’s after absorbing your attorneys’ fees!
Okay, so we finally have decided that we are going to do this extra work! Can we finally get started? Yes-if you know how to keep score! You’ll never guess what comes next.