Strong documentation strengthens a construction claim. Truss Faber attorney Abigail Staggers explains how to build documentation practices that hold up.
By Abigail Staggers
When contractors call me about a potential claim, the questions are usually the same. They ask, “Do we have a legitimate claim here?” and “How do we pursue it in a way that gets the strongest return with the least spending?” While the answers are complex and varied, my common refrain is that the most important part of any construction claim happens far before it’s filed, often before a dispute even begins.
Legal counsel can offer guidance to help contractors build strong contract language from the earliest stages of contract negotiations. Contractors can reduce liability by communicating with their legal team, closely following contract requirements and, as they go, documenting what happened and what it cost.
What should contractors tell their attorney about a project before signing a contract?
The more context a contractor or manufacturer shares with legal counsel, the more accurately counsel can advise on drafting substantive contract language. Before signing, a contractor or manufacturer should walk their attorney through the project’s scope, the components of the work and any nuances in execution. The earlier legal counsel has that full picture, the more efficiently contract language can address risk and strengthen coverage if something goes wrong.
What are the notice requirements in a construction contract?
Construction contracts specify exactly how, to whom and by when a contractor must give notice of a delay or unforeseen problem. On a job site, it's easy to raise a new obstacle or late delivery in conversation without creating the written record a contract requires. But formal notice under the contract typically requires more substantial documentation. Notice provisions exist because contracts anticipate that problems can surface at different points in a project, not as one culminating delay at the end.
For instance, under the Federal Acquisition Regulation, federal fixed-price construction contracts must include a Differing Site Conditions clause, which governs how and when a contractor must report unexpected conditions to preserve a claim. If a specification requirement affects the schedule or adds cost, the contract likely dictates when and how a contractor must flag that issue to preserve any future claim. Meeting that window preserves claims by strengthening their standing, which helps mitigate potential dismissal.
How does documentation affect the cost and outcome of a construction claim?
According to "The State of Construction Disputes Report" published by the Construction Management Association of America, ineffective communication, inadequate project management and a lack of proper documentation remain among the most frequently cited causes of construction disputes.
Since a strong paper trail is just the beginning, my counsel to contractors is almost always the same. First, connect a delay to financial consequences then back it with documentation of what happened and why the money is owed.
Ultimately, the strongest and most cost-efficient claims come down to the decisions made in the months before filing: the contract language, the notice given and the records kept along the way. That way, if a dispute arises, early and disciplined documentation gives contractors their best shot at the maximum return with the least possible spend.
Abigail Staggers and the Truss Faber team can help assess where your contracts and documentation practices stand today. Truss Faber PC represents contractors, manufacturers and other clients in disputes, compliance matters and contracts across construction, manufacturing, architecture and engineering.