Presentation to:

CONSTRUCTION PROJECT
DOCUMENTATION
July 28, 2017

Presented by: Ryan L. Beaver

Bradley Arant Boult Cummings LLP Attorney-Client Privilege.

 AGENDA
General Project Documentation
How to document claims and delays
Sample Documents
Dos and Donts of documentation
Questions and Discussion

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 First, what is
Documentation?
Physical things paper records such as bids, proposals,
contracts, correspondence, memorandums, drafts, reports,
drawings, specifications, shop drawings, submittals, daily
reports, meeting minutes
Electronic things E-mails, Facebook posts, texts, tweets,
audio and visual recordings and photographic info on
computers, anything in the cloud

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 General Documentation
Why do we worry about the documents
on a construction project?
Objective of the project isnt to generate paper
Objective of the project is to get the job built

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 General Documentation
Why document the project?
Better manage the project
Spot issues or problems early
Change methodology to avoid problems
Provide required notices
Accurately advise home office, owners, etc. of job
progress
Defend against claims
Manage subcontractors, vendors, etc.

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 General Documentation
Why document the project? (continued)
To develop your support for change order requests
(or denials)
Record costs or job conditions
Support claim
Develop historical data for future projects
Document conditions for RFI support
To make your lawyer happy!

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 PROJECT DOCUMENTATION
Know Your Contract Documents
Your rights, and obligations, on any
construction project are governed first by the
terms of your contract.
If you have project management responsibility,
do not wait until a problem arises to sit down
and identify what constitute your Contract
Documents.
To manage risk, you need to know what the
contract says, and to know what it says, you
need to have copies of each document that will
be considered a part of your contract.
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 PROJECT DOCUMENTATION
At the outset of any project, you therefore should collect a
complete set of Contract Documents, which include:
the Form Agreement (the fully executed copy);
any Exhibits that are supposed to be attached (such
as standard general conditions, supplementary
conditions, a scope of work sheet that may further
define work inclusions/exclusions, payment
requisition exhibits or forms, and addenda that may
add/delete contract terms);
any Documents Incorporated by Reference, such as
the project manual; and
a complete set of drawings and specifications

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 PROJECT DOCUMENTATION
Prepare a checklist of the various contract notice requirements
before you start the project.
The list should include
Types of issue (unforeseen site condition, change, delay, etc.)
Deadline for notice, recipient of notice

Checklist of Notice Requirements

Unforeseen Site Condition - Notice to Owner within 7 days

from date of discovery of unforeseen site condition and before
condition disturbed. General Condition 2.1

Give notice promptly whenever you suspect a notice may be

required.

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 General Documentation
General Documentation is the documents that are
created on a regular basis to record the story of the
project
Daily Reports, Meeting Minutes, Photos, Schedules,
Submittals, RFIs, Timesheets, Etc.
Why do we fill these documents out?
To communicate to people who arent there
To prevent/protect against selective amnesia
Organize information for later retrieval

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General Rules of Project Documentation

Keep it as simple and routine as possible

Do not try to over record or assign blame in
routine documents
Use standard forms when possible
Clearly designate the responsibility for keeping
certain records.
Have a process to review the records
Sends a message that they are important
Adds value to the process

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General Rules of Project Documentation
Document Facts
Who was involved/present
What happened
When (date/time)
Where?
Why be very careful with this one
Remember that the contractor is responsible for the
acts, errors, omissions of its subcontractors
DO NOT get personal: because you are the worst
superintendent I have worked with in 25 years.
Dont self-criticize: I know that we got you
drawings that were late and incomplete, but you still
should have been able to finish on time

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 Daily Reports
Daily Report/Log
Probably the single most important piece of general
documentation
Must be filled out everyday
Needs to be in a standard form
Always make sure you note the weather, the personnel,
the work performed, any problems encountered
What kind of problems?
Access, unforeseen site conditions, delays, etc.
Think about daily report as if someone that knows
nothing about the job is going to read them at the end of
the job to figure out what happened.

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 Meeting Minutes
Meeting Minutes/Notes
Do not just rely on the Owner or GCs minutes.
Keep your own notes of the meeting
Document the participants, the subjects discussed, any
future actions to be taken
Be cognizant that in a pinch, meeting minutes can serve
as a notice. If you are having access issues or are
delayed, dont hesitate to note those in the meeting.
You MUST review and correct any discrepancies, errors,
or omissions from the minutes.
Claims/cases can be won and lost on items that are or
are not in the meeting minutes.

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Meeting Minutes

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 PHOTOS
Photographic or Video Documentation
Photographic evidence can be incredibly powerful tool
for documenting things that happen on the project.
Perform an initial documentation of the site before you
perform any work
Create a photographic record of the site on a regularly
scheduled basis
Record all completed work (especially if your work is
going to be covered up or modified by subsequent
trades.

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 PHOTOS
How to maintain the photo record?
Best practice is to use a digital camera that will create a
time/date stamp on each photo
Dont rely on the time/date stamp though. Keep a
record of when photos were taken and who took
them
Create a photo file on your computer and save each
weeks worth of photos or each occurrence as a
separate, clearly-labeled file.
At the close of the project, create a CD of the photos for
the job file.

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 PHOTOS
Helpful Hints:
Always keep a set of spare camera batteries handy
Use an everyday item (pencil, credit card, clipboard,
hard hat, etc) to give some idea of size/scale of the item
that you are looking at.
Feel free to put a sign/label on item that is being
documented in the photo.
Looking at the photo of a random concrete slab or
drywall seam 2 years later, it can be very difficult to
remember exactly what you were trying to document
when you took the photo.

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 CLAIM DOCUMENTATION
Documentation created upon the
occurrence of an event that you believe
will affect your ability to perform your
contractual obligation on time or will affect
the amount that it will cost to perform the
contractual obligations.

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 CLAIM DOCUMENTATION
Once you are aware of a claim, all of the
items that we have discussed become
tools that you can use to protect yourself
and your interests:
Photos, Daily reports, meeting minutes
Not some much the blame game as describing what is
happening and how you are being impacted
Process of documenting your damages also begins as
soon as you believe you have a claim. Keep track of
time/days, extra costs (no matter how small), and the
efforts made to minimize the impact on the job and your
own wallet.
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 Claim Documentation - Notices
Remaining silent is NEVER the correct response to
realizing that you have a claim.
Remember: Know your contractual requirements
In order to protect your right to recover from anyone
upstream OR downstream from you, you are required to
give them notice.
Always notify the owner of a differing site condition,
change, delay, force majeure, etc.
Always notify your subcontractors of delays in their
work, defects in their work, interference with other
subcontractors, etc.
Develop a minimalist response that reserves your
rights!
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 Giving Notice
Timely Notice
Avoid Inconsistent Paper Trails Upstream
and Downstream
Identify Allowable vs. Not Allowable Costs
permitted by your Contract terms
Understand Subcontractor Pass-Through
Requirements
Pricing Actual vs. Estimated Cost
(disclose)

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 Giving Notice
Notice Checklist Some Basics
The date, nature, and circumstances of the conduct
regarded as a change;
The name of the individuals involved in or
knowledgeable about such conduct;
The identification of any documents and the substance
of any oral communication involved in such conduct;
In the instance of alleged acceleration of scheduled
performance or delivery, the basis upon which it arose;
The particular elements of contract performance for
which the Contractor may seek an equitable adjustment;
and
What adjustments to contract price and the completion
date affected by the alleged change are estimated.

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 Giving Notice
NOTICE OF CHANGE
SAMPLE NOTICE OF CHANGE LETTER

[INSERT DATE]
To:Owner Representative
Re: Notice of Change

On (date) , (name ) directed ABC Contractor to [describe

direction/instruction/RFI]. Specifically, Mr. s
[direction/instruction/RFI] constitutes a change to ABCs contract
because . Please be advised that ABC considers
any effort to comply with this [direction/ instruction/RFI] to be a
change, which may result in additional cost and time of
performance impacts. Accordingly, ABC will await official direction
from you prior to proceeding with this work.

Sincerely,
ABC Contractor
____________________
By:
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 Giving Notice
TIME EXTENSION/DELAYS
SAMPLE NOTICE LETTER
[INSERT DATE]
[INSERT ADDRESSEE]
Dear:
ABC Contractor continues to pursue the completion of our work as
quickly and efficiently as possible under the current circumstances.
We have, however, encountered certain delays to our work for
reasons outside of our control. We have communicated these
delays to your project representatives.
We have been delayed by several factors, including:
[INSERT DESCRIPTION]
Accordingly, we hereby request a time extension of at least to
our contract completion to take into consideration the above delays
under our Contract. We expressly reserve the right to claim
additional compensation for any costs resulting from these delays.
Sincerely,
ABC Contractor
_____________________
By:
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 TIME EXTENSION/DELAYS
SAMPLE NOTICE LETTER
[INSERT DATE]
[INSERT ADDRESSEE]
Dear:
ABC Contractor continues to pursue the completion of our work as quickly and efficiently as
possible under the current circumstances. We have, however, encountered certain delays
to our work for reasons outside of our control. We have communicated these delays to your
project representatives.
We have been delayed by several factors, including:
[INSERT DESCRIPTION]
Accordingly, we hereby request a time extension of at least to our contract
completion to take into consideration the above delays under our Contract.

In addition, please be advised that these delays have caused increased costs to our
performance with respect to supervision, overhead, equipment, etc. and resulting
inefficiency in labor. This letter is intended to put you on notice that we are entitled to
additional compensation for any and all costs resulting from these delays. We will provide
you a specific breakdown of these additional costs as soon as reasonably possible.

Sincerely,
ABC Contractor
_____________________
By:

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Giving Notice

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 Dont forget your Subcontractors
July 28, 2017

XYZ Subcontractor
Address

RE: Project Manpower

Dear Joe,
As we discussed today during our meeting, your company has
inadequate manpower onsite to complete post driving on Block 1
by September 15, 2017 as provided in the schedule. You
acknowledged that you are currently understaffed onsite, but
assured by that you will have 20 more men working onsite before
this Friday. In addition, you agreed to provide me an acceleration
plan for your company to complete the work as scheduled. You
and I should meet on Friday to confirm the increase and review the
acceleration plan.
Sincerely,

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 Dont forget your Subcontractors
Dear Subcontractor:

This letter confirms that in a phone conversation on July 3, 2017,

John Doe [Subcontractor's superintendent] acknowledged that
defective conduit had been installed in Area 3 and that it should be
replaced at Subcontractor's cost. To avoid delaying other
subcontractors, this conduit must be replaced by July 10, 2017. If
you do not replace the defective conduit by that date, XYZ
Company will replace the conduit and charge the costs of
replacement to your account. We expressly reserve our rights to
pursue any additional claims for costs that may be caused by this
conduit issue.

Sincerely,

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Dont forget your Subcontractors

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 HELPFUL HINTS
We tend to be very careful about formal
correspondence that goes out the door on letterhead.
Less formal/guarded in e-mails.
Even less formal/guarded in texts/internal
correspondence.
Keep in mind that ALL of these are things that may be
discovered and read by the other side if litigation
occurs.
Social Media is playing an ever larger role in everyday
life. Be careful what you put on Facebook, Twitter,
Instagram, Snapchat, etc.
Be extra careful about mixing business record keeping
with your personal devices or personal record keeping.

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 HELPFUL HINTS
Remember that internal memorandums are
discoverable regardless of how many times you write
confidential at the top of them.
In fact, confidential internal memos are generally just a
big red flag for lawyers like me.
Correspondence with lawyers generally is confidential,
but if you take a piece of correspondence from a
lawyer and forward it to someone else outside the
company all that protection goes away.
If you receive an e-mail that a lawyer is copied on, do
NOT forward it outside the company.

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QUESTIONS

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