May 29, 2020
By Leslie A. Boe
Lawyers often see construction claims compromised or dismissed due to a lack of documentation. To protect their ability to make and defend claims, construction project management teams must be trained to properly document what happens on the project and claims as they arise.
To be effective, field documentation of a construction project should be a standardized companywide practice, using consistent internal practices and forms. Good documentation will show the cause of events impacting performance, reserve rights to claims and payment, identify costs and quantify delays. Documentation must be contemporaneous to be considered reliable.
A few simple guidelines should be followed:
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- Keep it professional.
- Avoid being self-critical.
- Do not use foul language or off-color humor.
- Stick to the facts, rather than feelings.
- Keep the content of communication limited to one project.
Daily reports are the backbone of project documentation. Every major and some minor events should be reported. Reports should be turned in daily and follow the contract requirements regarding reporting. This means project management staff must be aware of the contractual requirements. Daily reports should not only report the work performed, but also should note delays and inefficiencies, which should be repeated for every day the delays or inefficiencies last. Contractors should never criticize their own company or workforce, but they should identify other trades materially interfering with the work. In addition, document material deliveries, manpower, equipment and weather.
On problem projects, consider putting an extra set of “eyes” on daily reports internally to be sure the documentation is complete and sufficient. Be aware that superintendents who are critical of daily records or tell contractors to stop “complaining” are often the same ones who deny a claim for lack of notice or late notice. Stick to documentation practices no matter what other parties say.
Notices are separate from and in addition to daily reports. Again, it is important that field project management be aware of contractual requirements requiring notice of potential claims for delays and costs. Failure to give notice can result in a waiver of the claim. Notices are time-sensitive and need to be in writing and given to the proper party(ies). Often there is a prohibition that work not commence until written notice has been given and the owner or general contractor has had an opportunity to inspect or respond to the condition about which notice is being given.
Some project documents may not be generated by the contractor, such as schedules or meeting minutes, but that does not mean it has no associated documentation requirements. It is important to document objections or exceptions to the proposed schedule, including two to three week look-ahead schedules; otherwise, it may waive the right to claim delay or interference. When meeting minutes are circulated, request in writing to add anything critical brought up at a meeting that did not make it into the meeting minutes. The contractor should always correct misstatements that concern work.
Photographs as a form of project documentation can be very useful. Photographs can help prove percentage of work completion, compliance with contract requirements and defective work. However, photographs are only useful if handled and stored appropriately. Photographs should be tagged or labeled with date and location to be meaningful in proving or defending a claim. Do not assume a smartphone is dating the pictures taken. Be sure it is set up appropriately to do so. Do not assume you will remember where the photograph was taken months or years later. Label and store them so it’s easy to know exactly what the photographs represent and why they were taken. If the contractor receive photographs from others, record who took them. They may need the identity of the photographer to set the foundation for the photographs to be admitted into evidence.
Project correspondence is another area that may require training. Electronic communication has forever changed the way we do business. People tend to be less formal in their electronic communication such as emails and texts, but they are project records like any other, so project management should be reminded that the same basic rules for any project records should apply to email and text communication. Do not assume personal email or texts are not discoverable in litigation. Email and texts are not the place for joking, making off-color remarks or complaining about the boss. It is important that if someone receives a communication in writing that contains accusations or criticism, never let it go unanswered. If the response is by phone call or an in-person conversation, always send a follow-up written communication that documents and confirms the conversation.
Whether prosecuting or defending a claim, having the appropriate documentation will pay off. Contractors should make sure the project management team is properly trained so they have the documentation needed to be successful in defending or prosecuting the construction claim.
This article was originally published in Construction Executive.