In my line of work, I run into a significant number of contracts. Some terms are especially bad for the side that did not draft the contract.
Despite signing on to bad terms, there are steps any contractor or subcontractor can take to enhance their chances of success when faced with a claim or dispute. Those steps include proper notice, proper notice and proper notice as well as documentation, documentation and documentation. Proper notice and good documentation are so important that they each deserved being repeated three times!
Let’s get down to the basics:
1. Proper Notice
As a prime contractor, you need to fully understand how quickly you must provide the owner notice that the project is being delayed, or that you are running into problems that are costing you more money. Likewise, as subcontractor you need to know the time limits for providing notice under your subcontract as well as the prime contract. More and more contracts are stating that if you do not provide timely notice then regardless of what or who caused the problem (even if it is the owner), you have waived your right to pursue a claim for more time or money.
Typical Events Requiring Written Notice
(Even if you talk about it at a meeting!)
a. Delays to the approval of submittals;
b. Disagreement with a written interpretation of the contract documents from the Architect, Engineer or Owner;
c. Information received through an RFI that changes or adds to scope or time;
d. Contractor’s receipt of a directive that impacts contract price or contract time;
e. Order for “minor” changes in the work that are not minor to the contractor;
f. Conditions encountered, observed, or believed to be present by Contractor at the site which differ from those indicated in the contract documents or are not ordinarily found in similar projects or sites. Most contracts state that the contractor has examined the site and is willing to take all responsibility for conditions that differ.
g. Interference with, damage to, or delay in, the Work regardless of the cause;
h. Suspension of the work;
i. An order by Owner to stop the Work;
j. Emergencies;
k. Force Majeure;
l. Government agencies making changes under their own authority;
m. Contractor’s desire to make a change in the work or deviate from the plans whether or not if affects price or time;
n. Contractor’s belief that overtime or acceleration must be implemented to keep to the project schedule;
o. Subcontractor or supplier request for increase in price or time;
p. Contractor’s use of Owner Allowance items;
Contractor’s use of contingency
2. Get it in Writing
Remember – there are no exceptions. Create a paper trail for everything. Whether or not to proceed with extra or changed work without a formal written change order or directive has to be decided on a case-by-case basis and most contracts require that you get a directive for extra work in writing – otherwise you waive your right to get paid. But when a decision is made at a weekly meeting, or you get a verbal directive, confirming in an email that you’ll proceed unless you are told otherwise is sometimes your only choice to avoid delaying the entire project. Sometimes you’ll not know if the other person gets the email even if you request a “read” receipt from the email server. So, to verify your “confirming” email was received, “cc” at least one other person and include a question to the person you send it to that will likely prompt them to reply to that specific email.
3. Keep it Clear
Strive to include only one issue per email and list the specific reason in the subject line. Do this even if you have more than one item to discuss. For example, if you are following up on one change order request and two RFI’s, send three different emails to keep the communication string clear for each item. Keep mindful of the proper chain of command, but “cc” others if an issue is becoming critical and you are not getting the information or direction you need.
4. Meeting Minutes
Keep notes from meetings yourself. Promptly review minutes if they are prepared by others and distribute changes to all attendees for items that are wrong or missing from the minutes.
5. Daily Reports
Set aside time daily to document the day’s events (daily reports or journal) and make this a habit regardless of whether or not you are required by your contract (or boss) to do so. Use your tablet, laptop, or good old-fashioned paper and ink! Document everything, all communications, even verbal discussions held on site. Document visitors, owners and inspectors who visit the jobsite, weather conditions, rental equipment, crew sizes, any unusual occurrences, etc.
Finally, the importance of documenting in “real time” cannot be emphasized enough - key details may be forgotten if prepared later - plus, documenting from memory lacks credibility. Realize that complicated and costly issues can end up going to litigation 2 or 3 years after the work is done and, by then, the individuals on the job will have forgotten most of the details. You (and your company) will thank you when you have ample and accurate documentation to refer to when testifying later. Always remember the old legal saying: The one with the best documentation wins!