Record Keeping for Delays

A standard and consistent method of documenting when and where project delays occur helps all parties remain informed of issues and engaged in mitigating delays. When delays become disputes, contemporaneous project records are a primary resource during the dispute resolution process. Expert witnesses or consultants rely on contemporaneous project records to perform forensic schedule analyses and determine the root causes of project delays. Therefore, maintaining contemporaneous project records that are detailed, clear and accurate is crucial to having a well-supported delay claim.

This post describes best practices for documenting project delays and how complete and accurate documentation can help facilitate the dispute resolution process. In this post, we:

• discuss different types of record keeping and explain best practices
• discuss common requirements for record keeping
• examine how record keeping facilitates the dispute resolution process

Types of Record Keeping

Contemporaneously maintaining project records and documenting project delays is crucial for all project stakeholders. Project delays and impacts can be recorded in several types of project documents including:

• Project Schedules: Contractors should track disruptions and delays, especially critical path delays, in the project schedule. Contractors are often required to add delay fragnet activities in the project schedule to reflect the impact of these disruptions on the project. Delay activities should have a descriptive activity name, an actual start date (the date the delay began), and should logically be connected as a predecessor to impacted activities.
• Daily/Weekly/Monthly Reports: Contemporaneous progress reports should include specific details of ongoing project disruptions and delays. The reports should include as much detail as possible for ongoing delays e.g., start date, impacted scope of work/area/activities, forecasted resolution date, and determination of whether the delay is critical.
• Project Meeting Minutes: Project meeting minutes provide a record of discussions at project meetings. Project delays and disruptions, including impacts and key decisions related to delays should be a consistent topic in progress meetings – and accurately recorded.
• Correspondence (e.g., letters, emails): Parties may discuss project delays in various correspondence, including formal letters and informal emails. For example, a contractor may send a formal notice of a project delay to an owner. Ideally, the letter will specify the circumstances of the delay, the start date, impacted scope of work/area, forecasted resolution date, and determination of whether the delay is critical. Parties should review the contractual notice requirements to ensure the notice is submitted within the required timeframe and contains the required information.
• Progress Photos/Drone Videos: Photos and drone videos can be useful tools in documenting progress and ongoing delays as they can provide visual evidence of work at various stages of a project. However, a simple picture with no context or date will have less value than a dated and annotated picture that describes the scope of work, delay, or disruption captured.
• Delay Logs: Delay logs are useful tools for tracking all delays experienced on a project. Contractors should regularly update the delay logs to ensure the status or impact is accurate. Below is an example of a delay log with useful fields.

Consistency and Specificity are Key!

Inconsistent delay references in project documentation can cause confusion in dispute settings. To avoid gaps in contemporaneous records, contractors should be diligent about maintaining project records throughout a project that include:

• project schedule updates
• daily reports
• weekly reports
• monthly reports

The records should also contain a consistent level of detail and be presented in a consistent format.

Project records should be as specific as possible when a delay is encountered. For example, a contractor should explicitly state which activity or scope of work is delaying the project, who is responsible for the delay, and which activities the delay is affecting.

Further, project documents should be consistent and not contradict each other. For example, the project schedule should show the same actual start and finish date for an activity as reflected in the daily reports.

Inconsistencies and a lack of specificity in contemporaneous records lead to ambiguities and challenges in developing a forensic schedule analysis, often resulting in more time and costs to complete the analysis.

Commonly Required Project Progress Reporting

It is common for a contract to specify requirements for progress reporting and maintaining contemporaneous project records.

For example, the Texas Department of Transportation requires contractors to maintain and submit monthly project schedules by the 20^th day of each month. TxDOT also requires a Project Schedule Summary Report (“PSSR”), which lists major items that have affected the schedule and summarizes progress in days ahead or behind schedule.¹

Progress reporting requirements are beneficial to inform project stakeholders of construction status and key issues that may extend the completion of the project.

Dispute Resolution Process

Project delays often lead to expensive disputes and litigation. Well-documented project records can help avoid these consequences and may improve a party’s negotiating position.

Expert witnesses and claims consultants, like VERTEX, often perform forensic schedule analyses to determine the root causes of project delays. Consistent and reliable contemporaneous project records improve the expert/consultant’s analysis.

As discussed in previous posts related to schedule delays, there are several methods by which to analyze project delays, including windows analysis, time impact analysis, as-planned versus as-built, impacted as-planned, and collapsed as-built. The type of forensic schedule analysis an analyst will use depends on the availability and quality of project documentation. Providing the analyst with consistent and reliable project records allows the analyst to create well-supported forensic schedule analyses.

For example, if a baseline schedule is the only available schedule (no contemporaneous schedule updates or as-built schedule), a schedule analyst may have to rely on other contemporaneous records such as daily, weekly and monthly reports to identify as-built dates. For these reasons – and others – accurate and detailed project records are essential to resolving delay disputes quickly.

In summary, keeping clear and reliable contemporaneous project records that describe project delays throughout a project assists with project management, keeps all parties informed and engaged, and is often the key to expedient resolution if a dispute arises.

If you have questions about this brief discussion on record keeping for delays or to learn more about VERTEX’s Construction Claims Consulting services, submit an inquiry.

References

¹ Texas Department of Transportation Standard Specifications for Construction and Maintenance of Highways, Streets, and Bridges, 2014, Item 8 – Prosecution and Progress.