11. Who Are You?
• Coast to Coast … Toronto … Vancouver
• Presidents, VPs, PMs, OMs, PEs, COO
– Public and Private Owners/Developers
– Architects/Engineers
– General contractors
– Specialty subcontractors/suppliers
– Insurance carriers
– Consultants (PM and Forensic)
– Bottom Feeders
11
12. Who Am I?
• Construction Attorney, LEED ® AP,
Husband, Father of 5, Blogger, Author
12
19. The Conclusion
• To promote effective project
management procedures
• Claim preservation
– Notice of claim
– Proof of liability
– Document claim impact
19
20. The Conclusion
• To promote effective project
management procedures
• Claim preservation
– Notice of claim
– Proof of liability
– Document claim impact
• If you end up in court …
– Minimize exposure
– Prevail in your disputes
20
21. Project Management Procedures
• Establish standard management
procedures
– Processing of COs & extra work
– Purchasing and receiving
– Project documentation
– Costs and accounting system
– Scheduling
21
23. Project Management Procedures
• Establish procedures to manage, monitor
and document work and progress
– Ensures regular flow of information for
project control and coordination
– Contemporaneous, accurate and complete
record of job conditions and problems
including their impact to the project
23
24. Project Documentation
• Purpose
– For proper planning and management
– Notice and reservation of rights
– Aiding in resolving claims and disputes
• Can be overwhelming but is essential
• Must be organized
– Standardized with written procedures
– Major classifications
– Chronological filing
24
25. Project Documentation
• Why are proper records so essential for
claims and disputes?
(1) To establish causal connection to event
(2) To establish reservation of rights/non-waiver
(3) To properly identify actual costs and delays
25
26. Critical Project Documentation
• Correspondence
– Establish responsibility for responding
to/acting on
– Used to comply with notice requirements
– Used to confirm discussions in writing
• Will help to clarify any misunderstandings
26
27. Critical Project Documentation
• Meeting minutes/notes
– List participants
– Subjects covered
– Nature of discussions
– Future action
– Distribute to all participants or those
affected
– Use previous minutes as agenda for next
meeting
27
28. Critical Project Documentation
• Daily reports/logs
– Routine, contemporaneous description of
work progress and problems
– Create standard form for easier use by
field personnel
– Can be used to build as-built schedule
28
29. Critical Project Documentation
• Daily reports/logs (cont’d)
– Information recorded briefly and concisely
• Manpower by subcontractors
• Equipment used or idle
• Major work activities
• Any delays or problems
• Areas of work not available
• Safety issues and accidents
• Oral instructions and informal meetings
• Weather summary
29
30. Critical Project Documentation
• Personal daily diaries
– Prepared by foreman, superintendents,
project engineers, project managers
• Record site conditions
• Record labor and equipment usage
• Record impediments to work
– Consistency is important
for trustworthiness
30
31. Critical Project Documentation
• Time sheets
– Document manpower
• Number of manhours worked
• Work performed
• Accounting records
– Must prove damages
with reasonable certainty
– Invoices
31
32. Critical Project Documentation
• Photographs
– Monitor, depict and
preserve conditions
– Pictorial diary of project (weekly or monthly)
– Document defective work or problem
conditions
Note pertinent information on back
• Date, time, location, condition depicted,
photographer
• Create photo log
32
33. Critical Project Documentation
• Status/submittal logs
– Shop drawings, field orders, change
requests, change orders, authorizations to
proceed, requests for information, drawing
revisions, transmittals
• CPM schedule
– Realistic baseline
• Input from subs for buy-in
– Regular periodic updates
33
38. Project Management Software
• Different software packages
• Types of information track
• Web based capabilities
• Project management uses
• Executive uses
• Other project team member uses
• Why do we need to know this?
38
39. Software Packages
• Prolog
Manager/Proliance
• Expedition
• Plans and Specs
• Bentley Systems Inc.
• Microsoft Project
– Self hosted
– Application service
provider environment
39
40. Web Based Capabilities
• Project team accesses same
web based database
• Access to design drawings, job
site photos, schedules, and
+400 reports
• Document control is enhanced
by tracking revisions, storing
master files, streamlining review
process
• Compliance with corporate
procedures
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41. Project Mgt. and Exec. Uses
• Procurement control • Daily reports
• Cost control • Contracts
• Document • Integration with
management SureTrak and
• Field administration Primavera
• Reports • Change orders
• Correspondence • Purchase orders
documents
41
42. Why do we need to know this?
• Step towards paperless project
• Excellent audit trial – check in/out, IP address,
version control
• Consolidate project documentation
• Integration problems with accounting software
42
43. Legal Issues
What is the “put it in writing” rule?
What is hearsay? Non-hearsay? Exceptions?
Email versus Letter versus Change Order?
Can we shred documents at the end?
What about paperless project?
43
44. “Put it in Writing” Rule
• What should you record?
• For whom are you documenting?
– General contractors/subcontractors
– Business/legal purposes
• Hearsay
– What is the hearsay rule?
– Exceptions
44
45. Exceptions to “Hearsay” Rule
– Business record exception
– Author actually observed conditions
– The records were prepared in the normal
course of business
– The records were prepared at the time of
the event(s) or reasonably soon thereafter
– There is no suggestion that the records
were prepared for the specific purpose of
use in litigation –“A less-guarded time.”
45
46. The Paperless Project
• Who owns the license to the program?
• How much access do the parties have to
the documents created in the program?
• Who controls the server?
• Will the parties be granted access to
project documents during the project?
• Is less formal communication (email)
good or bad for the parties?
46
47. Paperless Project (cont’d)
• Would you still use letters?
• Could emails to attorneys be retrieved
by other parties?
• Is a written instruction via email the
same as a change order?
• What type of information would you
want protected?
47
58. The Real World
• “One look is worth a thousand words.”
– Fred Barnard (Dec. 8, 1921 advertisement)
• 畫意能達萬言
– The Home Book of Proverbs, Maxims and Familiar Phrases (Mar. 10, 1927)
• "Un bon croquis vaut mieux qu'un long
discours"
– Napoloean Bonaparte
• “As the Chinese say, 1001 words is worth
more than a picture.”
– John McCarthy, computer scientist
58
59. E-mail: Not-So-Good
To: John
From: Paul
Re: Project Delays
John, I am going to have Drew send you some progress curve comparisons for
us to start the delay status analysis. I think we need to begin the discussion
with our management that we are late and tell them that we are analyzing
how late. We also need to consult the claims team as how we tell our
management that we are late. The schedule needs some serious work to be
used as a float tool and everyone is going to be looking to get answers.
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60. E-Mail: Bad
From: Contracts Manager about Upper Management
People did not listen and act on previous recommendations in a timely manner
and I am annoyed that those delays significantly impact the cost and schedule
to this project. COMMITMENT from management means listening to the
people who have to make things happen …
Yes, I am annoyed, but more importantly I am concerned where we are going
with this project if people do not listen and act quickly. How can we be
successful with the schedule and cost if we do not have the resources to
execute the job proactively and/or project management does not respond when
we make recommendations? WE NEED HELP!!!!
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61. E-Mail: Worse
From: Upper Management about Contracts Manager
Guys, let’s get real. I have three simple questions:
Is Bob the right person to be Contracts Manager on this project? If there is any
hesitation, then take the necessary action to get the right person in place.
Is there adequate support for the Contracts Manager at the site and/or back-up
available?
Are there any other projects in this deadlocked condition?
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62. E-Mail: The Worst
From: Upper Management to Contracts Manager
Bob,
I understand your frustration about lack of support from back in the East. We
are attempting to get the additional resources and assistance that you have
requested. In the meantime, you need to continue with the team in place. If
we are going to make the contractor look like they cannot do their job, we
MUST look and act like we are doing ours!!!
Rob
62
63. E-Mail: Dirty Words
Internal Correspondence
Great! What the hell are we supposed to do now?!?! This invoice will now have
to be made known to ABC Co., but not before our sailaway date of May 15th
*******
I am sure that Mr. Smith and Mr. Jones will be involved here, but I would much
rather have ABC Co. see this after our equipment has left the port and is on
the High Seas on their vessels.
63
64. E-Mail: Dirty Words
Internal Correspondence
Great! What the hell are we supposed to do now?!?! This invoice will now have
to be made known to ABC Co., but not before our sailaway date of May 15th
*******
I am sure that Mr. Smith and Mr. Jones will be involved here, but I would much
rather have ABC Co. see this after our equipment has left the port and is on
the High Seas on their vessels.
Lesson Learned: Watch out for the four-letter words.
64
65. Daily Report
4) MISLABLED PARTS STILL
ONGOING. LOST TIME IS
MOUNTING UP. LAYDOWN AREA
HAVING A HARD TIME DUE TO
MISLABELING.
65
69. Photos: Assist in Project Administration
Location:
Nashville, TN
User:
Owner (out‐of‐town)
Feature:
Progression photos used
by project members
during construction
Source: Multivista Construction Documentation
69
70. Photos: Proof of Installed Quantities
Location:
Memphis, TN
User:
General Contractor
Feature:
Aerial photos used to
establish entitlement to
installed quantities
70
71. Photos: Impeachment of Witness
Location:
Memphis, TN
User:
General Contractor
Feature:
Aerial photos used to
contradict witness
testimony on scope of
completion
71
72. Photos: Proof of Responsibility
Location:
Nashville, TN
User:
General Contractor
Feature:
Date of photos used to
establish insurance
coverage dispute
72
73. Photos: Defective Work
Location:
Atlanta, GA
User:
Owner & General
Contractor
Feature:
Walk‐through photos
used to show defect
and standard
Source: Multivista Construction Documentation
73
74. Photos: Incomplete Work
Location:
Atlanta, GA
User:
General Contractor
Feature:
Interior MEP photos
used to defend claim
by sub for additional $$
Source: Multivista Construction Documentation
74
75. Photos: Recover Regulatory Fines
Location:
Raleigh, NC
User:
Owner
Feature:
Pre‐construction site‐
survey photos used to
identify responsible party
for local fines
Not actual project photo
Source: Multivista Construction Documentation
75
76. Photos: Proof of Delays
Location:
Pittsburg, PA
User:
Steel Contractor
Feature:
Aerial photos show staging
area used by other trades
and impacted schedule
Source: Duggan Rhodes Group
5/30/00
76
78. The Legal World
• Higgins Dev. Partners v. Skanska USA
(Mont. 2009)
– Email sufficient to support a finding of
increased costs for change order
• Inland Construction Co. v. Cameron Park
(N.C. Ct. App. 2007)
– Email promising additional work not a
“contract”
– Lack of executed change order found to be
without merit
78
79. The Legal World
• A-1 General Contracting v. River Market
Communications (N.Y. 1995)
– Handwritten notations on contract “should
be ignored”
– No agreement about payment schedule
• Klein Development v. Ellis K. Phelps & Co.
(Fl. Ct. App. 2000)
– Faxed release of lien binding?
– Letter requesting original signature was
contradictory evidence
79
80. The Legal World
• Bethlehem Area Sch. Dist. v. White Bros.
Construction (Pa. Com. Pl. 2004)
– Letter constituted a limited admission of
damages (tiles and carpet, not mold)
• Raymond’s Building Supply v. Mattson
(Conn. Super. 2007)
– Photographs established that problems
“were or should have been” evident at the
time of termination
80
81. Future Issues
• Green Construction
– LEED ® credit templates, worksheets and
back-up documentation
– Documentation of energy performance
• Social Media 2.0
– Twitter
– LinkedIn
– Facebook
81
82. Questions?
Matt DeVries
Smith Cashion & Orr PLC
231 Third Avenue North
Nashville, TN 37201
(615) 742-8577 direct
(615) 354-3681 cell
mdevries@smithcashion.com
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83. What to Do When
the Project Goes Bad?
• Review all contracts to determine rights
• Notify the proper persons
• Document the impact
• Reserve rights and proceed under protest
• Prove the monetary loss due to impact
• Negotiate resolution
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