Quality control (QC) programs and reporting are not new to the construction industry. Engineers’ and owner’s specifications, and even manufacturers’ product data sheets, make clear what procedures must be followed and what records must be prepared to ensure that specified quality requirements are met or are within acceptable limits. Contractors are used to filling out QC reports to document environmental conditions, equipment operating parameters, and the work activities performed on site each day. The advancement of QC software and other technologies make it easier than ever to continuously monitor and record environmental, material, and other relevant conditions. Both contractors and owners should embrace the benefits associated with a top-notch QC program and diligent completion of QC reports, but they should be equally aware of the pitfalls that can arise when this aspect of a project is mismanaged and a legal dispute arises.
To resolve a dispute, lawyers must evaluate facts related to a project in terms of claims made by each side and the potential defenses and counter-arguments to those claims. If or when disputes arise on a project, the existence or absence of a QC program and QC reports (along with what is written or not written on them) can be compelling evidence that either helps or hurts your position. Although it is never the goal to end up in litigation or another dispute resolution proceeding because of your work on a project, it is helpful to consider whether your QC program would aid or damage your case in such a proceeding. Here are three points to always remember:
- Your program on paper is only as good as your program in the field. A QC program that looks great on paper might do wonders to help you win a project. But that same program, if poorly implemented, can cost you thousands, or more, if it is not executed as intended. Put thought into your QC program. It is easy to establish a practice on paper because it is an owner requirement or necessary to obtain an industry certification. But if you are not able and willing to implement the requirement, what seemed like a gold star in your favor at bid time can damage your credibility and can be used to draw inferences against you in court. It is often worse to create a program or plan that says you will do something and not do it, than to never have said anything at all. Take time to review your QC program, and make sure you and your employees are executing your work in accordance with your program.
- Train your employees well, train them often, and verify training effectiveness. Your program must be more than a commitment by the owners or upper management of the company. In fact, more than anything, it must be a daily commitment by your employees in the field. Train employees on the program, and set expectations for what it looks like to implement the program in the field. Think about the information that needs to be included on daily QC reports or in superintendent log books. Think about times when it makes just as much sense to record activities that did not happen on a given day as those activities that did and why. Be consistent with when and how you record this information. Remember, the absence of a record can be just as compelling as the existence of one in certain situations. Make sure your project managers review these documents regularly. If there is a problem in the reporting, you need to correct it as soon as possible. Make sure records are stored so they are easy to locate and review and protected from loss or damage. Finally, make sure you have a document retention policy in place (and that you follow it, as well).
- Do not be afraid to call on legal counsel. Do not shy away from seeking guidance on the legal risks associated with your business or a project. I know, I know — no one ever wants to get lawyers involved, and you certainly do not want lawyers dictating how to run your businesses. But as the saying goes, an ounce of prevention is worth a pound of cure. The right lawyer can add value to your business and make you more profitable. Rational contractors do not want to litigate disputes. They would much rather do the job they contracted to do, get paid, and move on to the next project. Proactive clients who contact their legal counsel about issues that might arise in the future often come out ahead of clients who wait to call until there is a real mess and a lot of damage has already been done. Whether it is a QC program, a contract, or a safety issue, lean on the legal resources at your disposal. Engage your attorney to conduct a review of your programs or to present needs-based training to your team for legal perspective on discrete topics that affect your business.