Disputes are Very Often Won or Lost on the Strength of a Party’s Documentation
The very nature of a construction project generates voluminous documents. While organizing and maintaining project documents can sometimes be difficult, it is important to know that disputes are very often won or lost on the strength of a party’s documentation. In the area of construction, the value of developing and preserving documentation cannot be overstated.
It is important that a construction professional keeps good records of its activities on the project. For example, estimates, take-offs and bid documents, submittals, original and as-built schedules, manpower loading reports, plans and specifications, correspondence and e-mails, and other materials kept in the normal course of a project document any problems the construction professional may encounter on the project.
Beyond maintaining records of daily activities and of the project in general, a construction professional must be both proactive and reactive in developing claim documentation. With respect to proactive documentation, the contractor should take immediate steps to create a record of potential claims as they arise. Where the contractor determines that it will be subject to unforeseen expense, delay, acceleration or disruption due to the fault of another, such concerns should be placed in writing and provided to all proper parties. If feasible, the contractor should also photograph and/or videotape problems on site, identify potential witnesses, and summarize the activities of other trades affecting its work.
Turning to reactive documentation, it is essential that the contractor responds promptly in writing to any communication concerning alleged facts or positions that may impact the viability of its claim. Where the owner, general contractor, construction manager or other relevant project participant disputes the claim or indicates that the problem has been addressed, the contractor must respond in a timely manner. A failure to provide a prompt response could represent a waiver of the claim under certain contract provisions or, at a minimum, be viewed as evidence that the claim was not a continuing issue.
Regardless of the party or the nature of the dispute, there is little question that the project participant who acts in a proactive manner and properly documents its position will hold a distinct advantage over an opposing party who fails to timely recognize and document issues as they arise.