In Construction ALL Communication Should be in Writing

By March 10, 2016 October 25th, 2018 Construction Litigation Blog, James Wakefield
James Wakefield

James Wakefield

In Construction, the basic rule is that if communication was not in writing, it did not occur. At first blush the comment seems ridiculous. Everyone communicates in person and over the phone. Usually those communications are important.

But most construction contracts require communications to be in writing in order to be enforceable. An example is extra work. A contractor’s project manager or superintendent sees a subcontractor on the job site and tells him or her that a particular task needs to be accomplished. The subcontractor, who has a good relationship with the individual, moves ahead and performs the task even though it is outside the subcontractor’s scope of work. Then the work is invoiced. The contractor rejects the invoice because the contract (like almost all construction contracts) requires that before any extra work is performed, the contractor must tell the subcontractor in writing to do the work.

Maybe the individual is no longer employed by the contractor. Maybe he made a mistake. Maybe the invoice is rejected based on a lack of writing as a negotiation tactic to get a better price. It doesn’t matter. Because the subcontractor does not have a written directive under most contracts, he will not be paid for his work.

What is the solution? It is so simple. But it so often does not happen. The subcontractor need only confirm the directive in an email.   Everyone uses email and it is accepted as a writing.

Extra work is an example of when a writing is needed. But there are many other occasions. It might be that the contractor or subcontractor is being delayed on the job causing damages. That needs to be documented in a writing when it happens. Site conditions may have changed. That needs to be documented along with the potential increase in cost.

It might be annoying to the recipient. But the moral to this story is no one ever gets in trouble for carefully documenting every event that might increase the cost of a job.