One major difficulty both contractors and employers can face in raising or defending a delay claim is a lack of records to support their position. Contemporaneous documents are generally always preferrable to an individual's recollection, although in some circumstances that may be all that is available.
The type of contract and project will influence the records being kept. For example, construction of a new care home will necessarily generate more paperwork than building a single house.
It is key that the terms of the agreement are fully set out in the contract, and indeed that there is a written contract! It is very important that you keep a copy of the whole contract bundle including any drawings, specifications, bills of quantities or any post-signing variations to the contract. That will be your record of what each party's obligations and rights are, and of any change to them.
It is also important to have a detailed contract programme which is regularly updated. Indeed, as we have explained in this series, the NEC contracts expressly require this.
Progress meeting minutes will provide a record of what happened and when. These can be crucial in identifying whether delays were critical. However, it is important that these minutes are circulated for agreement. Similarly, gate records will demonstrate who was on site and when, which in turn will provide an overview of what works were being undertaken at any given time, and labour resources on site.
You should also maintain records of all notices of delay and the material submitted with those notices. You should also ensure that you retain proof of sending in case you require to establish that such notice was given.
The other types of records that are useful to retain are:
- Email correspondence;
- Photographs provided they are date stamped and it is clear what is being seen;
- Site diaries; and
- Evidence of variations.
If you haven’t read our previous delay blogs, they can be found here.
Should you require assistance with any aspect of a construction contract, we have a large and experienced construction team who would be happy to discuss this with you.
We are currently considering topics for our next blog series. If there is a topic that would be of interest to you, please do not hesitate to contact our team
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