What Is Documentation?

Written work products that are mere recitations or summaries written long after events occur are often incorrectly represented as documentation. Such written work products may be useful as effective tools of persuasion in a dispute resolution proceeding, but they are not documentation. Contemporaneous written records of the facts themselves are documentation, but the recitations and summaries are not.

Written opinions of persons who were not present at the events in question also do not constitute documentation, no matter how experienced and knowledgeable the persons may be. Such expert opinions are important and useful in successfully resolving disputes and may be heavily relied upon by courts and arbitrators, but they are not documentation.

Documentation consists of the writings or records of persons who were present at events, written at the time or shortly after the time of the event. In many instances, it may be the only evidence in existence that reveals what actually occurred.

Value of Good Documentation

Good documentation is invaluable in resolving misunderstandings before they escalate into disputes. One party to a misunderstanding may have an incomplete or incorrect picture of the facts of an event or occurrence on the project. Good documentation of the true facts in the possession of the other party is very effective in clearing up the misunderstanding, thus avoiding a potential dispute before it starts.

If a dispute does arise that cannot be resolved short of litigation or arbitration, the party that can produce carefully prepared authentic job records supporting its position usually will prevail. The litigation or arbitration usually occurs sometime after the completion of the project involved. The actual participants in events, such as the engineers, foremen, and superintendents who were assigned to the project are often not available to testify because they have been transferred to other work, have left the employ of a party to the contract, or even, in some instances, have died. The existing job records, properly prepared by these persons, usually may be introduced and accepted as valid evidence of what actually occurred on the project without the necessity of the person who created the records appearing in court and personally testifying.

The home office principals of the parties involved, such as owners and company officers, usually are more readily available to testify, and they may be knowledgeable about what occurred on the job because their subordinates orally reported events to them at the time. However, they are not permitted to testify about what occurred or did not occur on the job because they were not there; and oral statements made to them by their subordinates are hearsay. Hearsay is a communication that is secondhand. The person “knows” some fact only because someone else told it to them, not because the person was present at events and knows the fact to be true on the basis of firsthand knowledge. Since these persons are not allowed to testify, the presentation in court of good documentation of events may be the only way to prove what actually occurred.

Exceptions to the Hearsay Rule

Although hearsay generally may not be admitted as evidence in court, there are certain exceptions. One such exception important to the construction industry is that, subject to certain rules, construction job records (which are hearsay in written form) are usually permitted to be introduced and accepted as evidence. The federal rules for acceptance of job records as evidence are quite broad, with the result that the records will be admitted if they can be authenticated as genuine. Some state jurisdictions are more restrictive, but properly authenticated job records will generally be admitted.

Conditions for Introduction of Job Records

In most cases, satisfaction of the following conditions permit the introduction of job records as evidence in court:

• It must be established that the persons who prepared or originated the records were actually present at the events covered and were in a position to have accurate knowledge. For instance, no one could reasonably argue that a crew foreman’s signed and dated time card was not prepared by a person who was present on the job and who had accurate knowledge.
• The records must have been prepared in the normal course of business—that is, it must be shown that the records are of a type that would normally be prepared under the circumstances existing at the time of preparation. For instance, foreman’s time cards, project daily progress reports, and accident reports are all clearly the type of documents routinely prepared in the normal course of the business of construction companies. Other examples are daily diaries, weekly and monthly cost reports, force account records, tax returns, material delivery tickets, records of work quantities measured for payment, and so on.
• The records must have been prepared at the time of events, or reasonably soon thereafter.
• There must be no suggestion or intimation that the records were prepared for the specific purpose of use in litigation. Such a suggestion impugns the objectivity and believability of the records.

Letters of Transmittal and Submittal

The first group consists of letters of transmittal and letters of submittal (documents 1 and 2). Both are similar in that each is a cover document for some other document of importance, such as a contract, purchase order, subcontract, drawings, schedules, and the like. Each of these documents has two aims: to establish a record of precisely what was transmitted or submitted and a record of the date that the transmittal or submittal was made. It is not difficult to understand the importance of both of these pieces of information with regard to the liability question if, for example, a series of concrete footings, poured according to superseded construction drawings, had to be demolished and repoured. Were the footings wrongly poured because the owner’s engineer failed to transmit the revised drawings to the contractor? Or was it because of poor drawing control by the contractor, who left the revised drawings rolled up in the corner of the job trailer and poured the footings according to the original drawings? The letter of transmittal of the revised drawings, if properly drafted, will settle this question.

Letters of submittal differ from letters of transmittal in one important way. Letters of transmittal do not imply or state that an approval is required or sought, whereas letters of submittal do indicate a request for approval. Both usually require an acknowledgement of receipt. Letters of transmittal are typically used to send drawings, specifications, prime contracts, purchase orders, subcontracts, change orders, certificates of insurance and similar documents, whereas letters of submittal are used to send material samples, shop drawings, proposed CPM schedules, proposed methods or procedures for carrying out the work, and the like. Preprinted forms for both letters of transmittal and letters of submittal are in common use today.

Letters of Notice

The second group consists of the typical contractor notices required by the “red flag” clauses of most construction contracts. All of these (documents 3 through 8) contain the same two basic elements as the first group—that is, they describe or identify an event or subject to which the notice pertains, and they establish a date of record that the notice was given. In addition, in each case, the contractor is taking a position. Therefore, each document should contain an additional element, stating the contractor’s position and the basis for believing that the position is correct. In addition to the three preceding elements, the notices in this group should contain other elements, depending on the specific notice. For instance, the notice of acceleration (document 7) should make clear that the contractor is accelerating construction operations and expects to be paid the extra costs of the acceleration. Similarly, the claim for constructive change (document 3), the claim for constructive suspension (document 4), the claimed delay (document 5), an independent request for a time extension (document 6), and the notice of differing site conditions (document 8) should all make the contractor’s position clear and that additional time and money are being requested.

Letters Requesting or Disputing Instructions or Letters of Protest

The third group consists of a letter requesting information or instructions (document 9), a letter disputing or taking exception to instructions previously furnished by owner or engineer (document 10), and a letter advising that the contractor is proceeding under protest (document 11). The two elements of identification and establishment of a date of record are required as for all the other documents. In addition, document 10, which disputes instructions or interpretations, should explain that a dispute exists and the reason that the instructions or interpretations have been disputed. The letter advising proceeding under protest (document 11) must make clear that a dispute exists, that the contractor is proceeding under protest, and that additional time and money are expected.

Confirmations and Meeting Minutes

The fourth group includes confirmation of instructions or agreements (document 12) and minutes of meetings (document 13). Both possess the two elements of identification and establishment of a date of record and, in addition, contain an element that confirms an understanding of a conversation, meeting, or instructions received. Such letters can relieve the recipient from the necessity of replying by indicating that if no advice to the contrary is received, the understandings stated in the letter or meeting minutes will be regarded as correct.

Routine Job Records

The fifth group—daily reports (document 14), force account records (document 15), cross-section data and other measurements of work performed (document 16), daily time cards (17), and material delivery tickets (18)—all share a common attribute. They are all forms of routine job records required to operate the project. Their purpose is to record facts about what has occurred. There are only two elements: recording facts and establishing the date that the facts were recorded.

Contractual Notices, Orders, or Directives

This class of project documents includes the more formal type of notice, order, or directive, required by the contract to be given by the owner or construction manager to the prime contractor, or by the prime contractor to subcontractors. Such things as notice of award of contract or subcontract, notices to proceed, stop orders, cure notices (order to remedy defaults), suspension of work or acceleration directives, and termination notices (document 19) are all included in this category. Although less frequent than other job documents, their importance is obvious. They should be drafted with great care and must contain some mechanism to establish the fact and date of delivery.