Supervisory personnel on the job site should be advised that no change order work is to be done without a written order provided by the owner or the owner’s representative. Forms acceptable to the owner should be available on site for your supervisory personnel to provide the owner with the costs associated with a proposed change. If there is a dispute as to whether the change order work is compensable, there should be a provision in the contract allowing for work to be done under forced account with an agreed upon time and material price for labor and materials.
Photographs should be taken of site conditions, as well as any problem area which may impact upon the progress of the work. Before and after photographs of work that has been corrected is important to protect one’s position as to the claims by nonperforming subcontractors. Photographs and videotapes of work left uncompleted by a subcontractor are important tools to assist in a litigation or arbitration action that attempts to value the work of that particular subcontractor. In determining whether to use videotape or photographs, the image to be projected must be considered. Frequently, a photograph will allow an arbitrator or trier of fact to look at a potential problem area as long as they desire. A videotape typically lacks the ability to focus the individual on a particular point for any extended period of time. Actual work in progress is usually best shown in a videotape.
Correspondence sent by the owner referencing alleged problems or concerns should always be responded to by the contractor. The weekly progress meetings or reports by the architect or other owner’s representative should be responded to or amended by the contractor or affected trade contractors when the contractor believes the information contained therein is inaccurate.
Daily reports should be kept by responsible supervisory personnel. Information provided should include the trade contractors on site; the number of individuals on site for each trade and the work being performed; weather conditions; and any particular problems with the project should also be noted on the daily report. If your supervisory personnel fail to focus on the daily reports, these reports can sometimes do more harm than good. The reports must accurately reflect what is going on at the project site.
Notice of Commencement:
General contractors working in the state of Georgia should always prepare, file and post a notice of commencement of construction on the job site and file the same with the Clerk of Superior Court in the county the project is located. This notice requires second tier subcontractors and material suppliers to give notices to contractor and the owner on private projects that they are supplying labor and material for that particular project. This allows the general contractor and owner to have an understanding of who is actually working on the project and allows them to keep track of whether the subcontractor or material supplier has been paid. General contractors can ascertain if there are payment problems between their subcontractors and second tier subs or material suppliers.
Further, failure by a second tier subcontractor or a material supplier to a subcontractor to provide a notice to contractor and owner on a private project results in the waiver of that particular subcontractor’s or material supplier’s right to file a lien upon the property. This is a powerful tool in the hands of a general contractor and no contractor should ever do a job in the state of Georgia without filing and posting an appropriate notice of commencement of construction. The legal requirements of this particular document can be obtained through your attorney in the state of Georgia. The filing of a notice of commencement of construction is required by statute on most public projects. The failure of the second tier subcontractors and material suppliers to send the statutory notice will bar their claims on the contractor’s payment bond.
The very nature of construction is that when a job is recreated for review by a trier of fact or arbitrator, the recreation occurs through visual images and review of the paper trail prepared during the construction project. Therefore, the careful documentation of a contractor’s position with the backup for the same must be part of the daily routine of a contractor. Almost every construction project of any significant size will foster at least one potential legal problem. The better the documentation provided by you to support your position, the more likely this dispute can be resolved via negotiation to your satisfaction or result in a favorable litigation or arbitration award to the contractor.
No construction industry member can be successful without understanding their legal obligations and rights, the impact of the various construction documents and their provisions, as well as an understanding of the rights and obligations of the various parties involved in the construction process. The ability to file a lien upon the real property of an owner on private projects and make claims upon payment bonds on public projects provides trade contractors powerful tools to protect their ability to recover amounts unpaid for their work. The filing of liens and the preparation of bond claims are areas in which any contractor should seek legal assistance.