08/14/2019 by Neil S. Lowenstein
Throughout the progression of construction, various things occur that may impact the time or cost of the work. Often, you are aware of those things when they occur; but other times not until later. If you have, and – just as importantly – your ﬁeld team follows, a consistent policy for documenting progress, you put yourself in a better position for supporting your positions regarding such project issues – both when you need to support your positions and refute the positions of others.
Records of regularly conducted business activities are “cloaked” with various evidentiary advantages based on those records’ reliability. But to beneﬁt from those advantages, foundational support is required conﬁrming the trustworthiness of your practice of documenting your activities. So, ﬁrst, it is important to have a practice in place; and, second, it is important to regularly follow that practice.
One of the most common construction practices for documenting progress is a progress report. Most companies have them available, but surprisingly do not always use them or use them properly. It is minimally important: a) to use progress reports consistently, b) to include accurate information, and c) to include complete information; keeping in mind that the information in them can cut both ways to either support your position or refute it.
The task of documenting progress typically falls upon project superintendents. They are, rightfully, primarily focused on getting the work done and, often, paperwork is saved for when there is time and then often done as quickly as possible with minimal input. While including the basics of the picture of what happened and why, that approach does not provide the complete picture; or, worse, provides an inaccurate picture. One simple example: If the progress report has a section for delays to the work, if nothing is stated in that section then that progress report will not support a later delay claim and will likely be used to demonstrate there was no delay.
With today’s technology, there are many simple, and relatively quick, methods for regularly documenting project progress. Examples include using digital photographs, video imaging, voice recordings, ﬁllable forms, etc.; much of which can now be “Cloud” based with easy access by phone or tablet. For most projects, that documentation will stay “in the Cloud” but for those projects where issues do arise, having complete and accurate documentation is often the difference between proving or disproving impact positions.
About the Author:
Neil S. Lowenstein is a member of the firm’s Construction and Government Contracts Law practice. Neil has been an attorney with Vandeventer Black since 1989, during which he has focused his practice on construction law, government contract laws, suretyship and fidelity law, and alternative dispute resolution. Neil also has experience with various administrative and regulatory matters and is an experienced litigator. For more information, contact Neil at firstname.lastname@example.org.