Alabama Construction News

OCT-DEC 2017

Alabama Construction News is the states only bimonthly magazine dedicated to the commercial construction industry.

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50 AL CONSTRUCTION NEWS OCT-DEC 2017 IT'S NOT WHAT YOU KNOW. IT'S WHAT YOU CAN PROVE. Cliché. Old Adage. Maxim. Call it what you will. It's true. If you can't prove it, it didn't happen. The number one reason you will lose your next construction dispute is this: you didn't document the project. You can't prove what happened. All you have is your word against your adversary's. Don't let this happen to you. The majority of construction disputes are won (or lost) by thorough, accurate, timely, and even strategic, documentation. Consider this example: a general contractor is building college dormitory for a private university. It has an August 15th deadline to allow the university to prepare for incoming freshmen. The contract contains a liquidated damages provision punishing the contractor for failure to complete on time. The estimated liquidated damages are the cost of finding housing for 350 college students until all dormitory units can be legally occupied. The contract allows for schedule extensions due to weather delays if the contractor provides evidence of the inclement weather and written notice of the needed extension within seven THE NUMBER 1 REASON YOU WILL LOSE YOUR NEXT CONSTRUCTION DISPUTE by JOE LEAVENS, BALCH & BINGHAM days of the weather event. Contractor A's project manager has a good relationship with the University point person. After two and half weeks of spring rain, concrete pouring and framing is essentially shut down. Contractor A's project manager mentions the delay this is going to cause over coffee while updating the University point person one morning. The point person completely agrees, "nothing to be done about this rain," he says. Contractor A's project manager feels confident about the conversation and goes about his day. After all, the need for an extension is obvious. The same thing happens to Contractor B's project manager; except he documents it. After the conversation with the University point person, he goes back to his office and reviews the contract. He determines what written notice is required and immediately sends an email to the supervisor about the delays and the need for an extension. He details the conversation with the university point person and describes the amount of rain, the temperature, and the forecast for the next few days. He also attaches the emails he received from the subcontractors and vendors explaining that they cannot perform the scheduled work. He even notes that the University's baseball team had to cancel its three game series over the weekend due to weather. Then, he sends all this same information to the University point person and formally requests a day-for-day extension. Finally, at the end of the email, he references the contract provision for weather related extensions and asks for confirmation from the University that an extension has been granted. Fast forward four months. Predictably, the dormitory is not finished on time. The Contractors submit pay applications as they get close to completion. The University responds by (1) denying the pay applications on grounds that the project was not timely completed; (2) claiming that the withheld funds will be credited against already incurred liquidated damages; and (3) informing the Contractor that liquidated damages will continue to incur until the date of completion. Subcontractors demand payment from the Contractor and threaten to lien the project. Everyone has to be paid out of the Contractor's reserves. When the Contractor has to lien the project and then sue the university to get paid and invalidate the liquidated damages claim, who has the better evidence? • Contractor A who has to rely on the vague and unreliable memory of his months' old conversation over coffee with the University point person (who will testify that no conversation about the weather delays ever took place); OR • Contractor B who has two date and time- stamped emails about the weather delay, corroborated by the University cancelling one of its own events (the weekend baseball series) due to weather, and a formal, written request for an extension as required by the contract. Documenting the project clarifies and records the events of the project and establishes a timeline of the parties' respective activities. Judges, juries, arbitrators and mediators give much more credit to documentary evidence than rank an unsupported oral testimony. Learn to document your projects. Disputes are inevitable. Accurate and supporting documentary evidence will make or break your next dispute. The best way to start any project is with a project diary. The diary should include a daily log of weather conditions, delays caused by others, on-site subcontractors and employees (and the number of labor forces on site), material deliveries, third-party visits, discovery of hidden site conditions, plan discrepancies and any important conversations. A project diary is most helpful when an incident arises JOE LEAVENS

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