Records, Records, Records

Author – Peter Foale MCIArb, LLM

Although at my age I am glad to see the revival of vinyl and turntables for audiophiles to engage with act of listening to music these are not the records I mean.

I have been fortunate, or unfortunate depending on your point of view, to have been involved in some very large Contractual Change and Contractual Disputes in the past 12 months. The content of the entitlement is generally a matter of Contractual Interpretation and with it the opportunity of monies or time is to be assessed.

So you win the entitlement but how do you prove recovery?

Depending on which hat I am wearing, Client or Contractor, I have to assess the information presented and determine entitlement. I have yet to have clarity on the issue, as inevitably within a Construction Contract “blame” for loss of efficiency in the planned process can be demonstrated as having a liability on both parties. Examples – plant breakdowns and weather on the Contractor and access and change of works from the Client. So how do you assess the impact of the works?

Measured Mile – this refers to the outputs achieved on the Contract where no interference or issues impacted either party by the other, eg went to plan. This gives a resource and output based upon records or duration in the programme. However, how do you ascertain this without contemporaneous record. The answer is fairly difficult without any clarity from the parties that a certain level of resource did certain works. Tendered outputs may be unrealistic based upon the whole of the site and as such they could well just be a tendered error. In which case how do you demonstrate that and if not stated in the Contract then the outputs are not essentially agreed.

Planned vs Actual – A review of the planned and actual durations may well present an agreed level of output. This depends though whether the level of information is available to the granularity in of the event in question. For instance is there a weekly programme run and does this resemble the relevant Contract baseline programme in both terms of resource and work content. Also does this also correlate to that envisaged by the parties at award? If a Contractor makes good progress across the works but is hindered in one area and the average is the same duration as the baseline is he entitled to recovery due to the hindered part (Prevention Principle). Has he suffered a loss if his resource and duration are aligned with the rates in the contract and the original duration (rough with the smooth)?

As you can see to establish what is the output without impact it can be taken as a matter of judgement if you don’t have contemporaneous (at the time) records. Yet Construction Contracts foresee this problem and generally provide the solution if parties ensure that they are in place. A review of a standard Contract has

NEC – Clause 31 & 32 – A review of the clause and the notes for guidance states that the programme shall also be issued for acceptance with a resourced statement of how the Contractor or Subcontractor plans to the works. Sadly when there is a dispute these are often not in place or accepted (reason for the dispute). As such it is not possible to have the Measured Mile or the Planned outputs agreed. On large scale projects the level of detail sometimes needed is not available. The outputs for a 450mm diameter drainage run average depth 3.0m is probably not given or demonstrated on a multimillion roads project.

Weekly or daily Resource Records – The old Allocation Sheet is in our opinion the document that is the perfect tool to demonstrate what did what. Various forms exist and most in some form or another have a works type description and resource allocated with a timescale. The level of detail is sometimes compromised and trawling through thousands of sheets to get an output is an issue. These are contemporaneous records and if submitted and accepted without comment are good records to have. Yet we see on so many jobs that these are either incomplete, lack any valid detail or are even not issued. The ability to see what did what on a day and even find the difference between dry and wet outputs can be complex to assess but also can be of benefit as a level of resource and output.

When I started as a site engineer we had to ensure that our daily diaries had a record of what was done and what resource was used for our element of the works. The Sub Agent used to check the copies from the carbon paper books and call for us if we were behind. Yet with the ease of the automated form and the mobile technology we have how come we don’t seem to keep good records?

Construction has many traditions which for the good are being reviewed, but the humble record appears to be a matter that is consigned to the “if we have time” scenario. Yet when you have a dispute and legal / commercial teams are trying to piece the puzzle of events and the impact together peoples recollection is not worth the paper it is not written on.

So I ask for my own sanity and your own profit line look to keep diaries and allocation sheets so as to demonstrate your entitlement and lets avoid costly disputes. So from the dinosaurs in the industry I urge you to keep Records, Records, Records.

Remember the bluntest pencil is better than the sharpest memory.