"I know it's outside the scope but we'll work
out the details after it's finished."
It should be no surprise that, when all anyone wants is to get
the work done, the paperwork can lag behind. In most cases the
parties do get it all worked out, but rarely without friction.
Memory is seldom without bias and everyone thinks that the other
guy owes them a break. Not every change ends in a construction
claim, but some healthy skepticism can keep everyone grounded. A
written record goes a long way to help in demonstrating what was
agreed upon in the moment.
In a perfect world, there is no deviation, change or extra
without a change order or formal direction. Construction contracts
are often explicit that the document reflects the whole agreement
and can only be changed by all parties agreeing in writing.
Particularly when circumstances lead to claims of extras, it is
critical that all details surrounding any changes in scope can be
Ideally, your day-to-day routine would include complete,
current, accessible and reliable records of instruction,
performance, costs, adjustments, updates and approvals, but life is
seldom perfect. That healthy skepticism should include
acknowledgment that some aspect of the construction project could
devolve into a construction claim. The successful resolution of any
claim depends on how convincingly one side makes its case, which
generally relates directly to how well supported their position is.
If a position cannot be demonstrated, then the only remedy to the
"he said - she said" scenario is a third party's view
of what sounds reasonable and fair. That can be a problem when the
underlying change that pushed the work off scope may have been
neither reasonable nor fair.
There should be a correlation between the relative
sophistication of your records, the cost to maintain them, and the
complexity of the work contracted, but even the simplest job
requires basic documentation and it is not enough for people in the
office to reconstruct records if those in the field do not
appreciate what, how and when to document. Circumstances will
dictate what is appropriate, but photos or video of unexpected
conditions on a smart phone, a note of a conversation in a field
book, or the existence of a job diary and clear expectation that it
be kept current can prove invaluable to your cause. The goals are
Convince the other side that your
position is justified under the contract, your assessments
reasonably reflect the circumstances, and allocation of
responsibility for events is rational and demonstrable;
Reconcile how the work can move
forward with everyone receiving equitable treatment; and
Avoid litigation, arbitration or
other dispute-resolution processes that distract from getting the
job done or demand your time, energy and money to fix what's
already been done.
The most critical types of project documentation include
correspondence, email and facsimiles, schedules and progress
reports, time records, superintendent's daily reports, minutes
of meetings, change orders and directions, and photos and video,
but any record can be significant. To be reliable, they should be
clear and concise, preserved in a durable format that does not
allow for unintentional destruction of data, dated and clearly
labelled. Established protocols for filing can include simple
features like consistent job numbering, recognizable subcategories,
and secure storage. Stamps affixing receipt or delivery dates or
identifying document circulation can be invaluable to demonstrating
a specific point. New technology can make storage and recovery
easier, especially when tender/RFP documents, specifications and
drawings are on-line, but unless everyone on the team is adequately
trained and embraces the process, the value is lost.
"Garbage-in, garbage-out" applies to most situations and
sometimes cutting-edge technology only seems to make it easier to
mess-up on a greater scale.
Communication is crucial to any successful relationship, so it
should be no surprise that reliable records of communications are
fundamental to fair treatment after the fact. If expectations are
clear in the first instance, then reliable records of expectations
will facilitate a smooth delivery of product or services for
everyone in the process.
Project Documentation Summary
Types of Project
Written correspondence (memo, email, fax)
Schedules and Progress Reports
Superintendent's Daily Reports
Change Orders and Directions
Photos and Video
Clear and concise language
Consistent job numbering
Up-to-date filing of project documents
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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