The Right Information Will Set You Free!
In the construction process, good, dependable, and accurate information about the design of a project, the building process, the materials to be used, and the schedule and time frame for the performance and completion of the project work is not only useful, but is critical to a contractor’s efficient and economical management of a construction project. The better and more available the information is the more likely the contractor will be able to properly manage its construction budget, perform and complete its project work while making a profit, and avoid unnecessary and unexpected costs and expenses.
But in my more than 28 years of construction contract litigation experience, I have come to the conclusion that most claims and disputes arise out of the failure of the disputants to exchange good, dependable and accurate information about the nature and scope of the claims, impacts, and disputes they are experiencing and to expeditiously, effectively, and efficiently communicate the proper, pertinent, and relevant information to each other. I have also found that when all of the pertinent information and documentation related to a claim or impact is collected, properly analyzed, and presented to the disputing parties after the fact, it is often pretty clear that a claim or impact is bona fide or baseless. This is because the information and documentation concerning any given construction project is usually quite abundant, maintained in numerous places in various forms (hard copy, digital, electronic, etc.), often duplicated, and usually not fraudulent, counterfeit, or fake.
In general, I have found it is not that difficult to determine after the fact what occurred on a construction project, when it occurred, why it occurred, where it occurred, who caused it to occur, and how it occurred. Rather, what I have found central to most construction claims, impacts, and problems is that those in the best positions to deal with the origins of and solutions to the claims, impacts, and problems failed to effectively and efficiently communicate with each other. And this failure of communication and after the fact analysis is really, really extremely costly to all parties concerned.
To avoid such unnecessary and unexpected costs and expenses, particularly, attorney’s fees for disputes, I have come up with what I believe is a better process, maybe a nearly perfect solution: every contractor and subcontractor on any construction project will be absolutely and strictly barred or prohibited from using any information or documentation for any claim or additional compensation for impacts to their work unless they immediately divulge and communicate all claim or impact information and documentation at the immediate time that they have any knowledge or awareness of a claim or impact situation. If contractors and subcontractors are required or forced to reveal, discuss, communicate, and deal with claim or impact information and documentation in real time when the problem is actually occurring, not later, then it is likely that a great many more claims or disputes will be resolved for a lot less extra cost or expense during the actual construction process, not long after the project was completed.
Okay, so how do we make it happen? Stay tuned for more information in this Construction Blog.