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Record Keeping
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Disclaimer

Keeping Records

There are a multitude of different types of records kepton construction projects, which are documented withvarying degrees of rigour depending on who isresponsible for their completion, as well as beingdependent on project management effectiveness fromone project to the next. The records that are ofparticular importance in the assessment of delay anddisruption are daily logs, progress reports, periodreports, job meeting minutes, programme updatesand revisions. Such documents enable the continuingeffect of problems to be communicated to all partiesinvolved. However if these are not related clearly tospecific delaying events they are unlikely to provide therequired clarity of evidence needed to substantiate aclaim effectively. Therefore separate and independentreports will often be required which are specificallyaimed at documenting and substantiating a delay,including specific schedule analysis.

The SCL protocol,which explains how parties should go about establishing a suitable project procedure to enable this, isperhaps the most well known recent document in the UK.

Key principles of the SCL protocol

The SCL protocol provides guidance on how topotentially resolve matters that might lead to disputesregarding extension of time and/or compensation forthe additional time and resources required to completea project. The principle objectives of the protocol(Black and Caletka, 2002) can be defined as trying topromote:

N agreed critical path at time of delay; N agreed float available at time of delay; N agreed EOT entitlement at time of delay; and N agreed compensation at time of delayand to prevent:N ‘wait and see’ approach to determining EOT; N cost of formal dispute resolution; N cost of establishing cause-effect nexus forensically;

and N disruption to operations/managementThe protocol addresses the key issues of programmepreparation and updating as well as the production ofaccurate progress records. These issues form the first‘core principle’ relating to delay and compensation inthe protocol entitled ‘Programme and Records’(Society of Construction Law, 2002: para 1). Thisstipulates:To reduce the number of disputes relating to delay, thecontractor should prepare and the Contract Administrator(CA) should accept a properly prepared programme showingthe manner and sequence in which the contractor plans tocarry out the works. The programme should be updated torecord actual progress and any extensions of time (EOTs)granted. If this is done, then the programme can be used as atool for managing change, determining EOTs and periods oftime for which compensation may be due. Contracting partiesshould also reach a clear agreement on the type of records thatshould be kept.

SCL Reccomendations

SCL recommendations: programme updatesThe protocol suggests that the programme is a dynamicdocument that needs to be updated according to actualprogress to enable proper monitoring of the project.The protocol further recommends that getting anapproved programme and keeping it up to date is soimportant that any disputes in relation either toapproval or to updating should be referred to adjudicationor whatever dispute resolution procedure isavailable in the contract. It should be added that theupdating of the programme to reflect actual progressdoes not mean that there is any admission of fault byeither side for any delay. But ensuring such transparencywill require a significant alteration in mindsets(Klein, 2002).Regarding programme information, the protocol(Society of Construction Law, 2002: para 2.2) specificallystates: ‘As early as possible in the project, thecontractor should submit and the CA should accept aprogramme (using commercially available critical pathmethod project planning software) showing the mannerand sequence in which the contractor plans to carry outthe works.’

The SCL protocol (Society of Construction Law,2002: para 2.2.1.5) also suggests that the programmeshould be updated on a regular basis to provide goodcontemporaneous evidence of what happened on theproject, in case of dispute.SCL recommendations: progress recordsThe protocol makes two key points regarding records(Society of Construction Law, 2002: para 2.2.1.2):

(1) Records are required to show what work wascarried out and when; and(2) the contractor and employer should agree whatrecords are to be kept.

While such an approach if implemented wouldundoubtedly afford significant benefits to the employer,it will clearly require a level of rigour that is unusualwith regard to normal project change managementpractices. Indeed this recommended approach has beencriticized by some as placing too much of an administrativeburden on the parties in terms of programmingand record-keeping, which will inexorably increaseconstruction costs (Henchie, 2002). Contractors areunder considerable pressure to minimize their profitmargins and it is sensible to assume that any additionalobligations that require extra resources and for whichthere are no immediate benefits to the contractor will tosome extent be opposed. However, these potentialbarriers also exist in the US, yet contractors on manyprojects are very careful to provide contemporaneousdocumentation and programme updates.

The US compared to the UK approach

Much of the recommendations are similar to established practice in the USA, and while the SCL protocol provides well founded andsensible advice, the extent to which this advice will beadopted in practice is less clear. In the US, recommendedmethods for claims management includingprocedures for proving progress records are morecomprehensively written into the common forms ofcontract and are generally more widely accepted as aresult. While the recommendations contained in theSCL protocol regarding programme updates andprogress record provision are sensible, its success willdepend upon the extent to which the main bodies forthe standard contracts adopt its principles. Currentlythe Institution of Civil Engineers (ICE) and the JointContracts Tribunal (JCT) do not include the recommendationsin their standard forms.

One could argue that the principles adopted in theprotocol are not completely new. The SCL’s guidelinesfor evaluating time extensions during the course of aproject are analogous to the Corps of Engineers’‘Modification Impact Evaluation Guide’ which waspublished as far back as July 1979. Certainly many ofthe principles adopted in the protocol are akin toaccepted principles in US Construction Law (Nash,2002). For example, under US law an updated CPMprogramme must be used to prove entitlement to anEOT, and this principle has been adopted in theprotocol. The protocol also adopts the US principlethat requires the employer to grant a justifiable EOT ina timely manner.

In response to a sharp increase in litigation in theconstruction industry in the early 1970s, in the UnitedStates public works lawyers developed contractualmechanisms to facilitate the analysis of delay anddisruption that was frequently being experienced onprojects. The aim of these mechanisms was to ‘minimizeexpensive and time consuming disputes as to acontractor’s entitlement to extensions of time andadditional payments for disrupted working’ (Davies-Evans and Harvey, 2003).

The U.S approach to Project Management

The US approach to project management wouldgenerally seem to place a greater emphasis on theimportance of scheduling and change managementthan is the norm in the UK – and most otherconstruction markets, for that matter. For many yearsundertaking construction work for the US government,for example the United States Agency for InternationalDevelopment (USAID) and the military, has required alevel of scheduling and record-keeping rigour beyondwhat is widespread in the international contractingcommunity.This requires considerable resources on the part ofthe contractor regarding both time and money and maybe viewed by some as onerous. However, it is strictlyenforced by the government agencies with stringentscheduling specifications and rigorous project documentationrequirements. Provisions have been added tomany US construction contracts for public works thatrequire the contractor to provide pre-determinedscheduling documentation at specified intervalsthroughout the duration of a project. The primarypurpose of these provisions is to provide the owner withappropriate and contemporaneous documentation inthe event that a dispute involving a delay and/ordisruption claim occurs.

These requirements have filtered down to commercialentities that are following the US government’slead, meaning that even contractors who are notundertaking public works are aware of the requiredmethods. The greater level of experience regardingformal procedures for dealing with delay and disruptionhas created important legal precedents as to the proofrequired for a contractor to demonstrate delay and disruption.


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