Be Careful What You Write In Your Construction Project Documents

Howard K. KurmanPrincipal, Offit│Kurman

As an experienced construction lawyer who has spent a fair amount of time in court, I can confidently state that large numbers of construction cases are lost because the project is not adequately documented.  While testimony can serve as evidence in a trial, contemporaneous written records often win the day.  Documenting a project, with one exception, is critically important to running an efficient job, avoiding litigation, and winning a case if and when it goes to trial.  That exception:  when you lose track of why the project is being documented in the first place.

I won a trial years ago because the defendant wrote a note at the bottom of a letter telling my client he was a “stubborn German bastard” and he should stop chasing him for payment or the money he owed my client “wouldn’t be a down payment on the attorneys’ fees he would pay to get it.”  After the jury saw that written emotional outburst on the second day of a week-long trial, the case was over for the defendant.  A recent case before the Armed Services Board of Contract Appeals demonstrated another instance where the Army Corps of Engineers nearly ended up in the same spot.

A construction company called GSC Construction, Inc. had its contract canceled by the Army Corps for late delivery of its work on a project at Fort Sill in Oklahoma.  The project, which involved the construction of a couple warehouse buildings, was behind schedule when the Army Corps canceled the contract.  GSC Construction challenged the cancellation and asked for about $320,000 in damages; and one of the main arguments was that the government unfairly targeted them.

The basis of GSC Construction’s argument?  Project documents referring to the review process of GSC Construction’s projects as “The Magnificent Seven.”  This exceptionally popular Western film from the 1960s tells a story in which most of the main characters die in the end.  GSC Construction took issue with the characterization and claimed that it demonstrated the Army Corps was looking for a reason to “cancel” them.  Fortunately, the Armed Services Board of Contract Appeals tacked the misstep up as a poor attempt at humor and refused to overturn the decision.  Such misplaced humor in a project document could have turned the case the other way, though.

This recent opinion served to reinforce the idea of how your project people communicate in their documents is as important as the substance of what they say.  Make sure your project personnel are aware of how important this issue is, and be sure to at least spot check project documents from time to time to ensure compliance.