Substantial portions of claims that develop during construction often revolve around issues of fact. Whether it is the existence of a site condition, a weather event, a trade coordination situation, an obstruction or an obstacle, one party to the contract will state a claim asserting that the cause of the claim is the fault of another party to the contract. Typically, the two parties in dispute are the contractor and owner, but disputes can be between contractor-subcontractor, contractor-construction manager and/or any combination of two or more entities on the project team. Once the responsible party is clearly identified, there is the issue of proving and quantifying the resulting direct costs, indirect costs and schedule impact, if any. Nothing resolves a dispute quicker than supporting (or disputing) the claim with proof of the facts, and nothing establishes factual proof better than photographs.
Additionally, photographs provide one of the best -- if not the best -- record of job progress. It is never more true than in construction that one picture is worth a thousand words. The contractor should endeavor to regularly take pictures of representative samples of job progress, preferably no less than weekly, or more frequently if needed. With digital photography in wide use today, these photographs should be kept in organized folders on the contractor’s project server where back-ups are routinely performed. Such photographs will frequently assist in substantiating events as well as help describe construction activities and the layout of the site to those not familiar with the project. Depending on the project, it may be advisable to set up a camera to take time-lapsed photographs from the beginning through the end of the project. The time-lapsed photographs are very beneficial if a dispute arises in determining the status of construction at various points in time.
When practicing digital photography, the contractor should ensure that the photographs are digitally dated, and in some cases time stamped. Additionally, a log should be maintained for each photograph that records the following information:
- Photograph number (the specific format should be tied to the filename of the electronic photograph);
- Date the photograph was taken;
- Who took the photograph; and
- A brief description of the location, what the photograph depicts, and the orientation of the view.
In a claims situation, photographs can be used to verify the existence of prior or changed conditions, describe characteristics of the worksite under different conditions, and present a factual recording of methods and equipment employed to accomplish different items of work. Pictures also can be used to show cause-and-effect relationships of changes, as well as to demonstrate the type of extra costs involved. For example, a picture can show how an added structure to a contract caused the necessity of rerouting access roads to another portion of the job through other contractor operations and a swampy area not originally anticipated (and not shown on the contract drawings). In more simple terms, a photograph can be used to demonstrate what work was, or was not, completed by the contractor at a given date or time. In a chronological presentation, photographs also can show how work either progressed or did not progress according to the contractor’s schedule.
In the case of videos, a similar practice of identifying and logging each video to that of the photographic logging procedures described above should be practiced by the contractor to maintain the integrity and credibility of this electronic data. Contractors also should consider video recording any high-risk activities (e.g. big lifts, and possibly from multiple angles). These videos will be very valuable if an incident occurs.
This article is based on a chapter on construction documentation written by Robert Freas, PSP, and Wesley Grover, PE, in an upcoming book on construction claims. Construction experts Freas and Grover will cover the importance of correspondence, the use of forms and logs, photos, electronic document issues and much more in an upcoming interactive webinar on Construction Documentation February 4, 2015. The session includes a 15-minute question-and-answer period so the audience can ask questions about their specific situations. Click here to register today.
Request for Comments
In a recent search, WPL Publishing found that very few standard construction contract document general conditions contain language with requirements for construction photos. WPL Publishing is interested in your opinion about photos, whether detailed specifications should be included and any samples that are publicly available that you think would benefit the industry. Please feel free to comment below. Thank you.
