Out there on construction sites, this can seem a bit like counting the number of angels you can get onto the head of a pin. Getting the right extensions of time and recovering the money that is due is seldom anything to do with esoteric contract law. Whether you get what you should in a dispute is all to do with the strength of your case – and whether you can prove it.
Can you prove that a delay was the result of being issued with information late? If you can, is it possible to demonstrate that this led to your incurring the costs that you are seeking to recover? The missing element in most cases is the records. Success is all about keeping them – and then using them to show cause, effect and your entitlement.
Contractors and subcontractors – for all the right reasons – concentrate on building.
For staff on site, record-keeping can be seen as an administrative burden. We need to change that perception. I hesitate to suggest this after what happened to John Major's morality crusade of the same name a few years ago, but what we need is a back-to-basics campaign. Forget clever new contracts – focus on the basics of record-keeping.
First, the programme. If you don't keep the details of what was built and when, you don't stand a chance of proving cause and effect.
Getting the right extensions of time and recovering money owed is seldom anything to do with contract law
We all know about the need to set up a master programme at the beginning of a project, and how this needs to be based on the logic of the method statement. Most of the time a master programme is prepared, although some could better reflect how the work is to be sequenced and carried out.
The problem is that in many cases the programme will be kept up-to-date religiously to show the actual progress of the work – but only for about two months. Then the specialist programmers get pulled onto exciting new tendering opportunities and the updating of the as-built programme comes to an end. Don't let this happen.
The second strand to the records is the detail of the activity on site. Most contractors keep records, generally for site meetings, of the stage that the elements of the work have reached. Frequently these types of records are worse than useless for proving what happened and when because they are just a list of percentages for the trades, generally conjured up the day before the site meeting. There is not much point in knowing that 16% of the dry-lining was complete at a certain date if nobody can tell which floors of the building this was on and whether it had been affected by the event in question. The answer is to keep meaningful site diaries and allocation sheets of who did what, where and when. Supplementing these with photographs can be really helpful.
There is no point in keeping records for the sake of it. Everything needs to focus on what will be useful later. At the simpler end of the scale, notes should include the dates when information was requested and received. It is surprising how often there is a lack of clarity on this. At the more complex end, they need to allow such things as disruption and loss of productivity to be recognised and established.
The reason that these areas are generally difficult to prove is that there is little data available from the site showing the levels of productivity attained before and after the disruptive event. Any data kept that can enable this connection to be made – particularly in respect of the subcontractors who actually carry out most of the work – is invaluable.
Andrew Hemsley is managing director of consulting at Cyril Sweett. He can be contacted on 020-7242 9777, or at firstname.lastname@example.org.