Every construction project presents itself with unique challenges that require careful attention
from a construction consultant (subject matter expert). In a traditional case an expert would go
out, perform or observe investigations, review construction documents, perform an analysis,
develop opinions based on the available information, and present a response to the alleged
claims. However, sometimes, cases can be more challenging than this. When a project becomes
difficult due to a design complication, a construction issue, or maybe just a difficult claimant,
such conditions cannot just be answered by applying traditional methods. Instead, the expert may
need to rely heavily on project correspondence, internal communications, change orders, and
other documentation to fully understand the circumstances surrounding a dispute. Additionally,
the pandemic certainly did not make things any easier on the trades and instead escalated the
challenges that everyone had to meet so a project could be finished. These challenges have also
now been passed on to the experts when construction claims do arise. This article explores the
importance of documentation in construction claims.
The pandemic exposed documentation issues. Material manufacturing delays and shortages,
coupled with significant shipping disruptions, forced many contractors to turn to architects and
design professionals to request material substitutions. These substitutions often resulted in
increased project costs, extended schedules, and growing frustration among project stakeholders.
In many cases, such as finish materials (e.g., flooring, cabinetry, exterior façade, etc.) are
involved, homeowners were faced with unexpected cost increases or were dissatisfied with the
substituted products. As a result, projects experienced additional delays while alternative
materials were reviewed, approved, and procured. These challenges often strained relationships
between homeowners, contractors, architects, and other construction professionals involved in
delivering the project. In some instances, dissatisfied owners sought to recover a portion of their
financial losses by challenging project costs, change orders, or the quality of the completed
work, ultimately resulting in construction claims.
Although many contractors maintained a good and strong practice of recording such changes,
many have also relied on older methods of verbal approval for material and design changes.
Potentially due to exhaustion strains from the pandemic and to save clients’ money, some
contractors resolved changes in the field or over the phone without a written record of a change.
Although both parties acted with the right intentions, such unrecorded changes ultimately led to
some significant ramifications. Contractors who ended up being brought into litigation had no
choice but to result in hiring attorneys and construction consultants to go through and evaluate
the scarce number of documents without knowing the full scope of a case.
We must acknowledge the difficulty in evaluating as-built conditions when the construction
consultant was not present on the job site, nor was involved in the design process. Instead, a
consultant’s task is to rely on the built structure, the investigations performed, and the available
documents to evaluate the claims. Construction consultants must evaluate the direct physical
evidence.
Many contractors do not consider, nor wish to imagine, that their work may one day be called
into question by a client. While no one expects or hopes for such circumstances to arise,
construction disputes can and do occur. For that reason, maintaining a thorough and well-
organized record for the entire project is essential. Even the smallest change should be properly
documented, reviewed, approved, and retained in the project records. All project correspondence,
including emails between owners, contractors, subcontractors, and design professionals, should
be preserved throughout the project’s warranty period and, whenever possible, for up to ten years
after project completion (minimally to the extent of the statute in whatever state the project is
located). Comprehensive documentation can prove invaluable if questions or claims arise long
after the work has been completed.
Why is this important? Because the smallest detail can make or break a case. Such information
can become critical for a consultant tasked with evaluating the facts, circumstances, and quality
of the work performed. Any piece of information that may seem unimportant may become
instrumental evidence that will help defend a contractor or a design professional. A contractor
should also keep in mind that when litigation matters arise, the accrued costs do not just arise
from the recommended repair work, but also from financial responsibility for covering attorney
and other fees associated with resolving the case.
When well-documented information is presented to a consultant, it significantly helps evaluate
each case with a deeper level of understanding of what has occurred. This leads to faster
resolutions and decreases time and costs to a contractor, as well as their insurance carrier. Many
consultants may attest that they wished for the client to have more information at their disposal
which would support a stronger position and make for a more valid argument. When this does
not occur, and the other side presents claim such as an unauthorized change in the design; it
becomes hard to argue and defend the allegation. Although damage may not exist, it may trigger
the need to perform additional evaluations of the project that will require additional inspections,
equipment, and disturbance to the property.
There have been cases in which a single email, change order, meeting note, or correspondence
between design professionals was enough to dismantle a significant claim or substantially reduce
the scope of alleged repairs. Such details can additionally be used to provide clarity to the
claimants and all parties involved. Documents that may appear insignificant at the time can
ultimately become critical evidence in a construction dispute.
To help minimize risk and facilitate a more efficient resolution, should a dispute arise,
contractors and design professionals should adopt consistent documentation practices throughout
every project. Maintain detailed records of all changes, including modifications to scope,
materials, schedules, and associated costs. Preserve emails, text messages, and other
correspondence between all parties involved in the project. One of the most valuable practices is
to routinely photograph the work as it progresses, capturing key milestones, changes, and site
conditions.
The importance of thorough documentation cannot be overstated. A single photograph, email,
change order, or project note may provide the critical evidence needed to clarify facts, support
your position, and significantly reduce potential liability in a construction claim.
Protect yourself by maintaining complete and organized project records. Should a dispute arise
with an unsatisfied client, those records can become invaluable to the consultants, attorneys, and
insurance professionals working to defend your work and help achieve a fair resolution.
Mark Kogan, GC
Expert – General Contractor
UAS Drone Pilot
MC Consultants, Inc.
