4/9/2012 Spring Clean Your Documents David A. Ericksen, Esq. Severson - - PDF document

4/9/2012 1

Spring Clean Your Documents

David A. Ericksen, Esq. Severson & Werson, A Professional Corporation One Embarcadero Center, 26th Floor, San Francisco, CA 94111 Direct Line: 415‐677‐5637; Fax: 415‐956‐0439 E‐mail: dae@severson.com

Seven Steps to Risk Management (& Project Success)

• Client, Project, & Team Selection
• Risk Evaluation & Project Planning
• Contract Preparation & Negotiation
• Communication
• Documentation
• Performance Consistent With Contract
• Responsiveness

Overview

• Documentation Relevancy

– Project Success – Risk Management

• General Documentation Procedures

General Documentation Procedures

• Project Documentation Procedures
• Conforming S.O.P. to Contract
• Responding to Non‐Conforming Challenges

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Polling Question

How do you most often communicate with your clients?

Communication Realities

• Project related communications may take

place in at least fifteen different ways.

• At most, three are consistently “recorded” in

writing or otherwise documented.

• In disputes, if it is not written, it is solely a

matter of credibility & popularity

• Untransmitted records are subject to dispute.

Why We Document

• Clear Communication

– Internal & External

• Organization/Efficiency
• Reconstructing the Project

– For yourself – For others on the project in your office – For claims/litigation

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Guiding Principles Communication & Documentation DRAFTS

Do not save internal drafts. Save external input into drafts. Save contract drafts. CAUTION with electronic transmittals: ‐pdf preferred ‐electronically scrubbed of metadata

Filing Systems

Centralized Filing of All “Official” Records: ‐ No personal files. ‐ All originals in centralized system. All i di d d i di ll ‐ All copies discarded periodically throughout project and at end. ‐ Standardized procedures for project closeout and archiving.

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Filing Systems “Paper or Electronic”

Hard copy should remain default. Must be accessible AND usable for every team member as necessary: S bl ‐ Sortable ‐ Searchable ‐ Comprehensive Must be preservable for length of internal policies AND contract obligations.

Polling Question

What form of project communication poses the greatest risk?

Telephone

Telephone Conversations ‐ Contemporaneous Records Required ‐ Sorted by Project i fi i if i l d ‐ Written Confirmation if includes: ‐ Agreement or Commitment ‐ Notification ‐ Request for action or follow‐up

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Meetings

‐ Contemporaneous records required for formal and informal meetings ‐ See to be the historian of the project ‐ Sorted by project ‐ Written confirmation if includes: ‐ Agreement or commitment ‐ Notification ‐ Request for action or follow‐up

Transmittals ‐ Mere cover sheet insufficient Need details of: ‐ Need details of: ‐ Specific content ‐ Purpose ‐ Action expected Voicemail

Most dangerous form of communication Voicemail makes users vulnerable:

• Informal/Casual/Spontaneous
• One‐sided documentation opportunity
• Unreliability ‐ no confirmation of receipt
• r content

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Voicemail

Four Steps to Effective Voicemail: ‐ Prepare (applies to all telephone calls). ‐ Get in, get done, get out. ‐ Follow up in writing as to: ‐ Follow up in writing as to:

• Points of significance (i.e., agreement,

notification, action);

• Corrections;
• Clarifications.

‐ Record of voicemails received as appropriate

E‐mail

EVERY design firm should have a written e‐mail policy and protocol which covers both: ‐ Human Resources Concerns ‐ Project‐Related Communication Project Related Communication

E‐mail as Project Communication

E‐mail is perceived as quick, easy, casual, and informal. It is quick. It is far TOO easy. In the context of a project‐ related communication, it is NEVER actually casual

• r informal.

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E‐mail as Project Communication

“A signature, contract, or other record relating to such transaction may not be denied legal effect, validity or enforceability solely because it is in electronic form.” Electronic Records and Signatures in Global and National Commerce Act ‐ Effective October 1, 2000

E‐mail as Project Communication

Project‐Related E‐Mail Concerns

• 1. Appropriate content.
• 2. Coordinated Communications:
• a. Transmittal to all interested or
• a. Transmittal to all interested or

necessary parties.

• 3. Reliability and authority for communications.
• 4. Documentation:
• a. Key component of overall project

record.

E‐mail as Project Communication

• c. Footers/Disclaimers:

“This message is intended solely for the recipient identified above and should not be

• pened, read, or utilized by any other party. This

message shall not be construed as official project information

• r direction except as expressly provided in the

contract documents.”

– Great peace of mind.

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E‐mail as Project Communication

Contract Requirement of Wet Signature or Reference: “Contractor shall rely on directions or information received from Engineer

• nly if received in a written form signed

y f f g by Engineer’s Project Manager or in electronic form from Engineer’s Project Manager and specifically referencing this section.”

Texting Tensions

• Very casual (i.e. emoticons)
• Typically not preserved (but may be)
• Lack of controls

Text Rules

• NEVER while driving or operating
• Never as project information given or received
• Limited to scheduling and requests for

communication.

• NEVER content.

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Archiving

Archiving ‐ Project closeout cannot be neglected. ‐ Be prompt, systematic, and efficient. ‐ Avoid Duplication ‐ Organized & Searchable

Retention Policy

GOAL: Retain tools to preserve records for risk management and contract compliance. ‐ Retain “forever”:

• Record Drawings

g

• Contract
• Final Invoice

‐ Retain per contract. ‐ All others retain for statute of limitations + two years

Standard Operating Procedures Construction Project Docs

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Administration & Management Issues

• Contracts

‐ Client ‐ Consultants Contractor ‐ Contractor

• Insurance

– Track Certificates – Verify Endorsements

• Billing

Design Phase Documentation Issues

• Schedule
• Budget
• Evaluations & Recommendations
• Coordination
• Coordination
• External Inputs
• External Reviews, Directions, & Approvals
• Client Directions & Approvals
• Programming & Scope Revisions

Construction Phase

Job Site Observations: ‐ Safety ‐ Non‐Conformance ‐ Reports/Record Keeping ‐ Disclaimers f f Requests for Information Submittal/Shop Drawing Review Change Order Review Substitutions Design Delegation Certifications Change in Services

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Polling Question

Which construction phase documentation issue drives the greatest risk of loss?

Construction Phase Documentation K.I.S.S.

• Standardize documentation and content as

much as possible.

• Standards are a starting point to be modified

to fit the situation to fit the situation.

• Logs and Action lists are also critical.

– May be individual or team wide.

Construction Observation

Contract specifications as to: ‐ Frequency ‐ Duration ‐ Limited Purpose p Disclaimer of Joint Responsibility. Focused Observations & Records: ‐ Standardized format ‐ Agreed‐upon plan for transmittal ‐ Avoided implied expansions of duty

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Job Site Safety

Disclaim responsibility in contract. Assign responsibility in contract. Act and correspond consistent with contract: ‐ Identify concern. ‐ Never suggest solution. ‐ Reconfirm lack of responsibility.

Requests for Information

• Establish format, schedule, and chain of

communication for RFIs.

• Establish and use RFI log.

i d i l d d

• Consistent and proactively‐worded RFI

responses.

• Require contractor to be financially

responsible for late, out of sequence, or unnecessary RFIs.

Shop Drawings & Submittals

Education of expectations, purpose, & process Contractual definition of purpose & process Express limitations in review documentation Consequences for contractor failures

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Shop Drawings & Submittals

Internal Procedures: ‐ Logs. ‐ Stamp limiting purpose and scope. ‐ Check list. ‐ Decline unnecessary reviews (e.g., means and methods).

Change Order Review

Limit scope and purpose of review by contract and correspondence.

Substitutions

• Identify the source of the suggested substitution.
• Require a warranty that the substituted product is

appropriate for the installation.

• Disclaim responsibility and identify concerns (e.g.,

inferior or untested product) in writing. C t t h ld id th t th d i t

• Contracts should provide that the design team may

rely on representations of party proposing the substitution.

• Provide that remedy for failure of substituted

product is solely against supplier.

• Refuse to substitute a bad or incorrect product.
• Secure compensation for processing substitution

requests.

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Design Delegation

‐ Establish limited review and role. ‐ Establish right to rely. ‐ Disclaim joint responsibility. ‐ Require indemnity.

Certification

Limit to personal observations and knowledge.

Conforming Procedures to Contract

Common Variations in Contract: ‐ Chain of Communication. ‐ Purpose & Scope of Reviews. ‐ Record Keeping: ‐ Responsibility. ‐ Duration. ‐ Certifications.

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Responding to Non‐conforming Challenges

• Always refer back to plans and contracts in

first instance.

• Always focus on line of duty.
• Always preview and work out strategic plan

Always preview and work out strategic plan with clients in advance.

• Document basis for and extent of change in

duties in procedures and obligations with appropriate limitations and disclaimers.

The Big Cs

Contract Conformance Consistency Clarity Clarity Candor Common sense

David A. Ericksen, Esq. Severson & Werson, Professional Corporation One Embarcadero Center, 26th Floor San Francisco, CA 94111 dae@severson.com (415) 398‐3344

To request a certificate of completion: Krysten Bernal @ kbernal@hallandcompany.com