Documentation Blocks Legal Attacks

Taking literary license from real estate, to a contractor, the most critical issues are documentation, documentation, and yet more documentation. While there is a practical limit, efficient means of recording information are readily available and increasing daily. Often, the lack of, or poor quality of the paperwork, hampers research for claims, or protection from legal attacks. He who produces a good paper trail will prevail. In one case, an electrical contractor sued the general for mal-administration. The estimate included a simple bar graph, put together during bid preparation that proved to be a major factor of the contractor’s prevailing in a high six-figure claim. The estimator’s notes, correspondence, and management’s record of involvement showed the general’s adverse intentions. Also included were daily job log sheets, which were validated by comparing them with the contractors’ time sheet reports that contained separate task numbers. The estimator and purchasing agent kept records of all conversations and their actions. Each entry was brief, but indisputable. After a mediation, wherein the general contractor refused to accept the decision that he had been negligent, a court decision gave the electrical contractor the relief he had sought all along. At the opposite extreme was the electrical contractor who maintained that he never put a mark-up on a project, yet provided an accountant’s proof that his profit margin exceeded 40 percent. The secret was that the firm bid only jobs that it could value engineer. They kept neither job site nor any other cost records, nor did it keep a copy of the original estimate. The contractor did not prevail. Most projects start out clean. Problems often aren’t recognized until after the difficulties have set in. This is where a tight job log helps. Although it may seem unproductive for the foreman fill in daily reports, doing this forensic work afterwards can cost far more. Estimators should ensure that accurate project records are kept and should be kept advised of any irregularities. There are aids on the market, such as a bound daily report book with a year’s worth of pages. I purchased a logbook from Safety Meeting Outlines, Park Forest Ill., for less than $20. Several books provide samples of paperwork to use for construction projects. An estimator’s bid may be proven by supplying a copy of the plans he or she estimated, and by specifically, noticeably identifying that particular set of plans, especially if it must be returned to someone. Photocopying a set of plans costs far less than the time that would be needed later to prove that the plans used for the estimate differ from the final project plans. The copies need not be full size, but they must be legible. In one case, a case contractor prevailed when a year and a half after the contract was started the agency produced a set of plans marked, “Final Bid Set.” There was no resemblance between the scope of work of the two sets, yet the agency stubbornly claimed that the “Final Bid Set” prevailed. The contractor had prepared an outstanding claims file. The agency finally caved in and granted a change of significant value. The contractor must be prepared when the claims hit the fan. Towards that end, consider the following defensive mechanisms for estimators’ portion of the work: • Keep proof of site inspection with dated photos (or have that day’s newspaper in the picture). • Keep job walk and other notes, business cards. Request a copy of the sign-in sheet, if there is one. Don’t depend on your memory––paper talks! • Work up a legible estimate and be ready to defend your estimating method. Specifically identify and date all paperwork of the estimate. • Keep track of any requests for information regarding who was approached, when the information was sent, and when and from whom a reply was received. • Prepare a schedule of how the work will be done in the time allotted. • Keep a log and copies of any alternates, however little electrical work is involved. • Identify long lead delivery items up front and include a comment about them in the estimate if allowed. Notify the awarding party of delays beforehand if the job has a tight time line. • Identify the specific chapters of the project included in the bid, and those that aren’t. Clearly state the work or other sections you are or aren’t excluding. • Identify specific project plans upon which you are basing your plans. Review all the plans for any notes of items pertaining to the electrical work and either include them in the scope of work or make an exception. • Review the specifications and contract for any items you may wish to take exception to or not include in your bid. n Finally, review all your work with a suspicious eye. Rely on your experiences and management’s to cover any previous problems—the situation is likely to recur. DAVID is a professor of electrical technology at Long Beach City College, Calif., and a consultant, and expert witness. He can be reached at (562) 597-1877 or by e-mail at

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