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05/01/21

Introduction to Contemporary Records

Introduction to Contemporary Records

There is a proliferation of published articles regarding the importance of contemporary records in the construction industry and the problems caused by inadequate records in support of claims - with good reason. A recent study showed that inadequate records was among the primary causes of delays in the assessment of extension of time claims. Another report found substantial inadequacies or failings in relation to recording labour productivity trends or recording compensation or delay-related events. Also, poorly drafted, incomplete, or unsubstantiated claims have been said to be one of the two most common causes of construction disputes worldwide.

In this, the first of a series of five articles, we will discuss the common inadequacies and problems with records that Driver Trett and Diales faces on a daily basis when producing or assessing contractor and employer claims or producing expert reports. We will also discuss how these issues can be avoided. 


Author: Adrian Dobbie Holman, Associate Director, Driver Trett Dubai. 


Firstly, some background. 
Construction projects are almost always unique, and large international construction contracts often have requirements for extensive management, quality, health and safety and progress records, in addition to what the contractor might require as part of good practice and its own internal procedures. Commonly-used standard forms of contract usually specify that certain records are to be kept, for example the FIDIC Red Book 1999 and Yellow Book 2017 Clauses 6.10 and 4.20 / 4.21. In our recent experience, contracts are becoming much more prescriptive regarding what records must be kept, and even how they must be archived and kept accessible, sometimes for years after completion.

Any claim for additional time or money will almost certainly have to be substantiated to a large degree and to the extent possible by records, with the most important type being contemporary records.  What is “contemporary” might not be defined but could include records produced up to a few weeks after the event in question – which would include monthly progress reports, for example. The FIDIC Yellow Book 2017 Clause 20.2.3 defines contemporary records as “records that are prepared or generated at the same time, or immediately after, the event or circumstance giving rise to the claim”.

Factual and expert witness evidence, and documents produced long after the related events and with a claim or dispute in mind, are not considered to be “contemporary”. This type of evidence has its place in the substantiation of claims and the resolution of disputes, but if used as the foundation for a claim in the absence of contemporary records – that claim is likely to be less robust than it could otherwise have been. 

In our experience, particularly in dispute resolution proceedings, records are of exceptional importance in both common law jurisdictions (e.g., England and Wales) and civil law jurisdictions (e.g., the UAE, Saudi Arabia, and Qatar), even where the latter has a reputation for a greater reliance on witness evidence rather than documents. 

One common issue that we see in relation to records is when there are little or no records to support a particular claim that is being made. The most common issues that we encounter in records, including those related to progress and that have actually been produced partly or fully, are as follows:

  1. Actual activity start and finish dates, and stated progress %’s not supported by records;
  2. Changes (e.g., to logic and durations) made to programmes when updating;
  3. Inaccurate and overstated progress reporting;
  4. Progress not recorded against an approved programme;
  5. No contemporary records of labour productivity;
  6. Missing information in progress reports (e.g., activity location);
  7. A reluctance to produce actual cost records;
  8. Over-reliance on letters rather than primary records;
  9. Multi-topic correspondence;
  10. Inconsistent and conflicting records;
  11. Illegible documents;
  12. Undated photographs, without location information (e.g., floor level);
  13. Inadequate document management and control systems;
  14. Incomplete or inaccurate document registers; and
  15. Disputed record attributes e.g., not approved, not an “original”, not signed;

In our next article we will discuss common issues with programme and progress records, what problems they cause, and how to avoid them.

If you have any concerns regarding the sufficiency of your record-keeping or if you wish to have a no-obligation discussion with one of our highly experienced consultants, please contact Adrian Dobbie-Holman on +971 55 889 5203 or adrian.dobbie-holman@drivertrett.com.
 


 

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