The First Three
Rules of
Construction
Document,
Document,
Document!
Presented by:
Cheryl McBride
Director
Trauner Consulting Services, Inc.
Presentation Overview
1. Bid Phase Documentation
2. Electronic Documentation
3. Oral Communication & Documentation
4. Hard Copy Documentation
5. Summary
6. Questions and Answers
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FEFPA Summer Conference 2009
Why should we care about
documentation?
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FEFPA Summer Conference 2009
Why should we care about
documentation?
Because it is an unfortunate fact that too
many construction projects end up in
some form of dispute that leads to
mediation, arbitration, or litigation.
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Why should we care about
documentation?
Most disputes can be traced back to one
simple question:
Who knew what and when did they
know it?
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Why should we care about
documentation?
Effective communication and
documentation techniques increase the
likelihood of resolving issues in a timely
manner without resorting to the claims
and litigation route.
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If it’s not in writing,
it didn’t happen.
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Why should we care about
documentation?
When it comes to settling disputes, the
best offense AND defense is a wellorganized, well-documented project file.
The facts speak for
themselves.
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Contemporaneous vs.
After-the-Fact Documentation
It’s easy to build the project on paper
contemporaneously with field operations.
It’s much more difficult and not nearly as
effective to reconstruct project
documentation after-the-fact.
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Contemporaneous vs.
After-the-Fact Documentation
Proper project documentation begins
before the beginning…
the beginning of field ops, that is.
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Contemporaneous vs.
After-the-Fact Documentation
Start your documentation during the bid
phase.
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Contemporaneous vs.
After-the-Fact Documentation
Create a pre-bid “observations &
assumptions log” that accompanies the
bid documents through the estimating
phase of the project right up to the time
the bid or proposal leaves your office.
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Examples of
Observations & Assumptions
• Opportunities for value engineering
• Assumptions regarding the effect of
inclement weather on the project
• Notes from estimators about anything
that, in their experience, seems strange
or unusual
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The pre-bid file should include:
Every qualification, clarification, exclusion,
calculation, pre-bid agreement with
subs/suppliers, product substitution, and
anything else that will be helpful to the
operations staff.
WHY?
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The pre-bid file should include:
Because the cumulative information
assembled by the management and
estimating staff during the bid phase of
the project is invaluable to those who are
tasked with building the project.
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The key to a successful hand-off
from office to field is:
The accuracy, completeness, and
reliability of the estimator’s work.
Don’t fumble the hand-off!
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Examples of
Electronic Documentation
• E-mail
• Schedules
• RFI and Submittal Logs
• Digital Photos
• Videos
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E-mail is:
• Considered contemporaneous
documentation
• Every bit as important as hard copy
correspondence
• Admissible in legal proceedings
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Treat incoming e-mail as you would
a letter or a fax
• print it
• date-stamp it
• file it!
And don’t forget the attachment!
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FEFPA Summer Conference 2009
Treat outgoing e-mail as you would a
letter or a fax
Print it, date-stamp it, file it!
Because e-mail is a quick and easy
method of communication, it’s easy to
lose perspective of the importance of the
document.
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This e-mail was sent by an owner
to a contractor in response to a
pay application submittal:
“You make me sick. You are not only
incapable of completing our project,
submitting proper pay application or work on a
professional harmonious environment, but you
are always casting stone to others … I am no
construction brain, but look at the project you
built … So what do you call yourself?”
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Electronic Schedules are:
• Considered contemporaneous
documents
• To be preserved for posterity in their
original form
• The preferred source of information
when analyzing delay claims
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Electronic Schedules
• Most scheduling software operates in
“real time,” which means that any
changes made to schedules are
updated immediately.
• Always save a pristine copy of your
baseline schedule and every schedule
update for the duration of the project.
Never “WRITE OVER” original
schedules!
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RFI and Submittal Logs are…
• Considered contemporaneous
documents
• Excellent management tools
• Concise historical records
Keep these logs updated on a daily
basis!
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Digital Photos and Videos are…
• Considered contemporaneous
documents
• Precise records that capture an exact
moment in time
• An inexpensive and very effective
documentation method
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A Picture Is Worth
A Thousand Words
• Engineers, architects, project
managers, superintendents, owners’
reps, construction managers…
• Anyone with management responsibility
should arrive at the jobsite equipped
with a digital camera
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Examples of situations in which we
rely on oral communications:
• Telephone conversations
• Field meetings
• Inspections with the AHJ
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Oral Communications:
Best Practices
Whenever direction is given or received,
or when something is agreed to or
promised during a conversation, the best
practice is to follow up with a written
confirmation.
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Here’s an example of a
subcontractor confirming direction
given by the general contractor:
“Yesterday in the supers meeting, you told me
to set up my scaffold and start laying block at
the SE corner of the building. This morning out
on site you told me to set up and start block at
SW corner. The scaffold arrives today. I will set
up at the SW corner per your direction.”
Signed & Dated & Copied for Sub’s File
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What do you do when you are given
direction by someone not authorized
to do so?
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What do you do when you are given
direction by someone not authorized
to do so?
Dear Owner,
Today your interior designer was at the jobsite for a tour. She
decided that the meditation room should not be painted fireengine red as shown in the room finish schedule. She directed
us to repaint the room a soft mauve color. However, since the
room is already painted, there will be a cost to repaint the room.
Please advise if you would like us to prepare a proposal for your
review.
Sincerely,
Your Favorite Contractor
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Examples of
Hard Copy Documentation
• Meeting Minutes
• Daily Reports
• Notes to File
• Letters
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Characteristics of properly
documented Meeting Minutes:
• Complete
cover
all topics discussed
• Inclusive
capture
all comments on each topic
• Accurate
no
editorial or inflammatory comments
• The facts and nothing but the facts
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Meeting Minutes: Best Practices
Always read Meeting Minutes
immediately upon receipt!
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Meeting Minutes: Best Practices
What happens when meeting minutes are
not accurate or omit information?
If left unchallenged, inaccuracies and
omissions in the meeting minutes
become the permanent record.
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Meeting Minutes: Best Practices
When a response to Meeting Minutes is
required:
1.
Inform the author in writing before the “expiration
date.”
2.
Staple your response to the subject meeting
minutes and file.
3.
At the next meeting, make it an agenda item to
discuss the inaccuracies and/or omissions.
4.
If the inaccuracies and/or omissions are egregious,
insist that corrected minutes be issued.
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If it’s not in writing,
it didn’t happen.
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Daily Reports
Daily reports dovetail with schedules and
meeting minutes to document the project
for posterity and should follow the same
rules as meeting minutes.
• Complete
• Inclusive
• Accurate
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• Factual
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Every Daily Report should include:
1. Weather (rain gauge)
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Example:
Any claim for an increase in Contract Amount or
Contract Time shall be in writing and shall include
an analysis of the progress schedule and shall be
delivered to the Owner’s Representative within
15 days of the occurrence giving rise to the claim
… If the claim for an increase in Contract Time is
due to adverse weather conditions, Contractor
must provide documentation to support that the
adverse weather condition giving rise to the claim
was unusually severe for the location of the work
and could not have been reasonably anticipated.
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Every Daily Report should include:
2. Location of work on site
3. Work accomplished
4. Quantities, if applicable
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Every Daily Report should include:
5. Workforce by trade and number of
workers
6. Hours worked
7. Equipment in use
8. Idle equipment
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Example:
The Department will handle time extensions for delays caused
by the effects of inclement weather differently from those
resulting from other types of delays. The Department will
consider these time extensions only when rains or other
inclement weather conditions or related adverse soil conditions
prevent the Contractor from productively performing controlling
items of work resulting in:
(1) The Contractor being unable to work at least 50% of the
normal work day on pre-determined controlling work items due
to adverse weather conditions; or
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(2) The Contractor must make major repairs to work damaged
by weather, provided that the damage is not attributable to the
Contractor’s failure to perform or neglect; and provided that the
Contractor was unable to work at least 50% of the normal
workday on pre-determined controlling work items.
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Every Daily Report should include:
9. Potential delaying events
10. Significant events
11. Safety issues and safety/tool box talks
12. Meetings held on site
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Every Daily Report should include:
13. Direction received from AHJ
14. Deliveries
15. Record of visitors
16. Author’s signature and date
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Daily Reports
• There is an art to creating good daily
reports. Don’t assume that it comes
naturally.
• Field personnel must be trained to write
accurate and acceptable daily reports.
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Daily Reports Example 1:
There was a storm water control project in
California that required a large diameter tunnel be
drilled through a mountain. The tunnel was lined
with a spray-on cementitious material called
shotcrete. The contractor’s foreman recorded the
following in his daily report.
“Good thing I had my goggles on. The nozzleman
was an idiot – crete was everywhere. This is the
third guy in a row they’ve sent me who has no clue
what he’s doing.”
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Three years later…
After the project was completed and in use,
the liner material began to de-bond and fall
off. The owner sued the contractor for
defective work. This one particular daily report
became the “smoking gun” the owner’s legal
team was looking for.
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FEFPA Summer Conference 2009
Daily Reports Example 2:
The surveyor has billed us only one other time on the
project back in December of last year. We requested
at that time they provide signed daily time tickets for
their hourly services (as required by their subcontract
agreement). Signed daily time tickets is a means of
verifying the hours on the job, they should be brought
to our superintendent and signed daily. They have
never provided signed daily time tickets, and never
billed us again until the last day of August. No way for
me to verify hours worked on the job without signed
tickets. It’s their fault!
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Daily Reports Example 3:
• On 189 days, daily reports recorded that
manpower assigned to the project was working
within the project limits, but was not performing
work associated with the contract scope of
work.
• On 180 days, the daily reports recorded that
manpower assigned to the project had been
sent offsite to other projects.
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• On 120 days, the daily reports recorded that
one or more subcontractors were delaying
the project.
FEFPA Summer Conference 2009
Daily Reports Example 3 (Cont.):
• On 57 days, the daily reports recorded
that contractor personnel performed work for
FEMA after Hurricanes Charlie and Frances.
• On 32 days, the daily reports recorded that
equipment had broken down, was off the
jobsite, was unavailable, or there was no fuel
available.
• On 21 days, the daily reports recorded that
material required for installation that day was
unavailable.
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Daily Reports
Someone at project management level
should spot check at least one daily
report per week from each jobsite.
Maintain a continuous dialog with the
people responsible for writing daily
reports and offer guidance on their
choice of words.
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Notes to File
1. Document an unusual occurrence
2. Document a telephone conversation
3. Document the status of something at
a particular point in time
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A good construction letter should:
1. Have an introduction, a body, and a summary.
2. Be limited to one and only one subject.
3. State the facts or questions clearly.
4. Discuss the subject in as few words as
possible.
5. Employ your best technical writing skills (omit
the prose).
6. Exclude emotion, sarcasm, threats, and
profanity.
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Article 6.2 - Notification
Contractor shall promptly notify Owner’s
Representative of any event that may
give rise to an increase in Contract
Price or Contract Time. Such notification
shall be in writing and shall be delivered
to the Owner’s Representative within 7
days of the event.
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FEFPA Summer Conference 2009
A good construction letter should have
an introduction, a body, and a summary:
On Tuesday morning, May 19, 2009, we were excavating for
footings on the west side of the building between column
lines D and E. We encountered a subsurface condition that
appears to be rock.
We checked the geotechnical report that is included in the
contract documents. No rock is indicated in the area where
we are excavating. Therefore, in accordance with Article 6.2
of the Contract, we hereby notify you that this event may give
rise to an increase in contract price and/or contract time.
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We are currently investigating the situation and will keep you
informed as to what we find. In the meantime, we are
tracking our labor and equipment time towards the resolution
of this issue.
FEFPA Summer Conference 2009
A good construction letter should have
an introduction, a body, and a summary:
Please reference our letter of May 19, 2009. We notified you
that we had encountered a subsurface obstruction that
appeared to be rock.
We are pleased to inform you that this turned out to be a
boulder and we were able to remove it by changing the
bucket on the backhoe. No additional cost or time was
involved.
We hereby withdraw our notification of May 19th and
consider this issue closed.
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A good construction letter should employ your
best technical writing skills and omit the prose:
The Contractor requested that we provide
as-builts of the pipe duct banks, which
traverse through the tunnel. At this time our
office has suffered a tragic loss of our print
machine. I will provide a copy of the prints at
the next meeting. My apologies for any delay
this may cause.
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FEFPA Summer Conference 2009
A good construction letter should
exclude emotion:
I questioned why my firm was paid only 90% of our Change
Orders #2, 4 and 5. This work was authorized by the
Developer to be performed on a T&M basis. We did just that;
we did follow instructions.
I have thought of an easy solution for the Owner. They have
only paid 90% of these extra work tickets. I don’t want the
balance of the 10%. I can take 10% of the piping back that I
have installed and with the escalation of material costs in the
last year, I will install it at a job that is actually willing to pay
me.
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Can you please indicate what 10% of the piping I can
remove? I would like to start this process on Monday July
14th.
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A good construction letter should
exclude sarcasm:
Due to discrepancies in the plans and the
information provided by you the architect, we
are being forced to react to solve a problem
with the tie beams at the tops of the masonry
shearwalls … If we encounter any resistance
from the City of ________ or the Threshold
Inspector we would hope that you will provide
the assistance necessary to satisfy their
requirements.
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FEFPA Summer Conference 2009
A good construction letter should
exclude sarcasm:
We are currently working with the City and
the Threshold Inspector to resolve the issue
with the tie beams at the tops of the masonry
walls. As the designer-of-record, your
assistance may be required. To keep you
informed of our progress, we will copy you on
all correspondence related to this issue.
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FEFPA Summer Conference 2009
A good construction letter should
exclude threats:
I have made a list of the following items which
you may wish to take action on, in
response to the contractor’s claim:
1. Deny contractor’s claim and work with the
attorneys to make up some countersuit for a
similar amount.
2. Work closely with the Resident Engineer and
make a long punch list which includes every
possible small nit-picking item.
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3. Advise the contractor to remove his batch plant
from the job site within the next seven days or
threaten to charge him ground rent.
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A good construction letter should
exclude threats:
4.
Review the number of rain days this year
compared to previous years and if it is
substantially lower, decrease his contract time
accordingly.
5.
Review the Superintendent Daily Reports and
see if there are any items documented that can
be used against him.
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FEFPA Summer Conference 2009
A good construction letter should
exclude profanity:
In regards to your letter, dated November 22,
_____ , concerning possible erosion of slopes
on the contract captioned above, please be
advised that we are of the opinion that you are
full of shit.
If you have any questions concerning this
matter, please do not hesitate to contact me.
I remain
Very sincerely yours,
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Some letters are simply
indescribable…
“While I was sitting on the toilet reading this fax, I realized
that this project has a lot of similar aspects of medieval
torture.
Take for example, the Judas Cradle, the triangular-shaped
end was inserted into the victim’s anus, just like this project,
we took it up the anus.
Another very similar means of torture is the Judas Chair. I
am convinced this chair was used while we were negotiating
this claim. I’m just trying to figure out which is more painful.
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The saw, how appropriate; just cut us in half, regardless of
the amount of the change order. The common element
between these forms of torture and this project is the slow,
painful death.”
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And accompanied by illustrations…
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Summary
1. Be judicious in your choice of words.
2. Include the facts and nothing but the facts.
3. As you write and review your
correspondence, picture explaining it in a
deposition or at trial.
4. In certain instances, a hot letter or email
should be allowed to cool off overnight
before sending.
5. When in doubt, send it out!
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If it’s not in writing,
it didn’t happen.
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The One to Beat…
We are in receipt of your Letter of Termination, which you kindly
faxed to us at 7:10 p.m. yesterday evening …
I find your predatory and abusive behavior, abusing of our good
will and intent, to be disgusting in the extreme. You promise and
plead to obtain what you want, only to turn around and break
your promises by twisting your words. Your firm has a reputation
for this type of behavior, but you shall not get away with it this
time.
In summation, I have never worked with a more disorganized,
disreputable, disgusting, abusive, predatory, underhanded, lying,
back stabbing S.O.B. Owner in my entire life. The past two and a
half years working with you and your firm have been nothing but
agony and torture.
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Sincerely,
FEFPA Summer Conference 2009
Questions?
Presented by:
Cheryl McBride
Director
Trauner Consulting Services, Inc.
www.traunerconsulting.com