Last month, I wrote a post about using daily reports to support a construction claim.  The more I think about that post, the more I am reminded that the primary goal in construction disputes is to tell the "story" about what occurred on the project site that resulted in the need for additional labor, changed materials, redesign, impacts to the schedule, increased costs, etc. 

The importance of "story" was part of a speech I heard last year by the Honorable Steven Reed, a former judge of the Armed Services Board of Contract Appeals who is now in private practice.  Judge Reed’s talk focused on the alternative dispute resolution process and, more specifically, "… the practical side of developing the contractor’s story in support of a claim."   Some of Judge Reed’s best tips:

  • The big picture: Contractors must anticipate the possibility (if not the probability) of disputed matters. Prevention and preparation are essential to a favorable outcome.
  • Documentation: "Daily reports are generally required under Federal contract."  They "should contain facts … not feelings or emotions." (Don’t call the project manager a "jerk" in the project documents, even if he is one.)  Rather, use the daily report as an "opportunity to create a comprehensive record of performance." 
  • Claim proof:  "Your contractor client will absolutely need its bid papers for evidence in a claim against Government."  It’s a no-brainer, but you need a good document management process in place.  
  • Dispute forum:  Picking a forum for resolving your dispute is strategic.  For example, a decision from the Board of Contract Appeals will be "predictable" and the process is more "stable" while the Court of Federal Claims will be more "rule bound."  The forum is also important because the Court has certain jurisdiction over fraud claims, while the Boards do not.

Judge Reed concluded his written presentation with sound advice: "Contractors need to be educated, prepared, aware, and well-represented."

Question: What tips do you have for improving the story?