At the outset of any construction project, when goodwill and trust are usually at their high points, the parties will often neglect to record in writing many of the key agreements and understandings reached between them. Later on in the project, when problems start to arise, trust and goodwill often give way to the financial realities of potential construction claims. More often than not, it is not until this latter point in time that the parties will start to thoroughly record events, as well as any agreements and understandings that may have been reached.

Failure to properly record and document construction projects can be fatal in a claim. Written agreements and documentary evidence will almost always outweigh oral evidence and alleged verbal agreements.

It is crucial to keep in mind the following items during the course of a project, which will help to support or defend a claim should one arise:

• Keep all bid documentation and record any pre-contractual agreements, representations and understandings in writing and ensure they are in the contract or can be relied upon at a later stage.
• Ensure that a fully signed written agreement is in place before commencing work on a project. While oral agreements are generally enforceable, written ones are easier to prove.
• Read and be familiar with all contract terms, especially the notice provisions. Failure to provide notification of a potential claim could preclude a party from bringing its claim.
• Keep all project correspondence. It is often helpful to organize project correspondence according to each key party and whether the correspondence is incoming or outgoing. For example, it is important to remember that in order to litigate a delay claim, it is generally necessary to reconstruct the project in detail on a daily basis.
• Record all relevant conversations and send follow up correspondence. Parties may proceed on a project for months based on a particular representation or understanding, only to find out later during litigation that the other party denies everything. Where there is no response to correspondence, a court may find that a failure to respond affirms what was said in the letter.
• Take pictures or videos at all stages of the project. Nothing can help a judge or lawyer more to understand a problem or deficiency on a project than an illustrative picture of it.
• Keep all plans and drawings and ensure that you have accurate records of all amendments or addendums.
• Make sure a project diary is kept along with diaries for key personnel.
  Diaries should record:
  1) the weather
  2) manpower, visitors and contractors on site
  3) key deliveries
  4) any notable event such as problematic or hidden site conditions or events that may cause delay or affect productivity. Ensure that entries express facts, rather than opinions.
• Maintain an as-planned schedule and regularly update it with an as-built schedule. There are several computer programs available to schedule and track progress. The end product of a proper scheduling exercise is a plan that should tell a contactor or owner what sequence work should be done in, when it should start, what work has to be completed first, when successor activities should start, and when it should finish. Having an accurate schedule for a project and regularly updating it will provide a valuable tool for tracking and recording delay and the impact of that delay.
• Record all key events, especially ones that may lead to a claim, and specifically record:
  1) when the event occurred
  2) what it was
  3) who noticed it
  4) the projected impact it may have on cost and time
  5) whether notice was given and to whom
  6) response to notice.
• Record all change orders and claims for extras and when they were submitted for approval, and separate those that are approved from those that are not. A contractor who has failed to get approval for a change order should always diligently express and protest their ongoing concerns writing. When doing so, the contractor should adhere to the contractual notice requirements. Parties should also be aware of the ability to give notice that they are performing under protest.
• Document the additional costs caused by an event. It is particularly important to keep proper accounting and employee payroll records pertaining to additional overhead and employee costs. Accounting records should be able to recreate the costs associated with particular tasks and problems as well as to create a snap shot of costs incurred at a particular point in a project.

When should you submit a claim?
Many contracts contain time constraints on claims filing don’t let your rights be reduced for failure to properly submit.

What constitutes a claim?
Any dispute for time, money or change to a general requirement of a contract can constitute a claim.

Force Majeure?
[see below]

Can my payment be held?
There are strict provisions in most contracts that require prompt payment, also many states have enacted laws to prevent slow payment.

Retention when should I receive it?
Retention is held to ensure project completion it is generally reduced or stopped when work is 50% complete

Force majeure what is it and how can it effect you? Force Majeure (French for "superior force"), also known as cas fortuit (French) or casus fortuitus (Latin)^[1], is a common clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, or an event described by the legal term "act of God" (e.g., flooding, earthquake, volcano), prevents one or both parties from fulfilling their obligations under the contract. However, force majeure is not intended to excuse negligence or other malfeasance of a party, as where non-performance is caused by the usual and natural consequences of external forces (e.g., predicted rain stops an outdoor event), or where the intervening circumstances are specifically contemplated.

Purpose

Time-critical and other sensitive contracts may be drafted to limit the shield of this clause where a party does not take reasonable steps (or specific precautions) to prevent or limit the effects of the outside interference, either when they become likely or when they actually occur. A force majeure may work to excuse all or part of the obligations of one or both parties. For example, a strike might prevent timely delivery of goods, but not timely payment for the portion delivered. Similarly, a widespread power outage would not be a force majeure excuse if the contract requires the provision of backup power or other contingency plans for continuity.

A force majeure may also be the overpowering force itself, which prevents the fulfillment of a contract. In that instance, it is actually the Impossibility or Impracticability defenses. In the military, force majeure has a slightly different meaning. It refers to an event, either external or internal, that happens to a vessel or aircraft that allows it to enter normally restricted areas without penalty. An example would be the U.S. Navy aircraft that landed at a Chinese military airbase after a collision with a Chinese fighter in April 2001. Under the principle of force majeure, the aircraft must be allowed to land without interference.

[edit] Importance

The importance of the force majeure clause in a contract, particularly one of any length in time, cannot be overstated as it relieves a party from an obligation under the contract (or suspends that obligation). What is permitted to be a force majeure event or circumstance can be the source of much controversy in the negotiation of a contract and a party should generally resist any attempt by the other party to include something that should, fundamentally, be at the risk of that other party. For example, in a coal-supply agreement, the mining company may seek to have "geological risk" included as a force majeure event; however, the mining company should be doing extensive exploration and analysis of its geological reserves and should not even be negotiating a coal-supply agreement if it cannot take the risk that there may be a geological limit to its coal supply from time to time. The outcome of that negotiation, of course, depends on the relative bargaining power of the parties and there will be cases where force majeure clauses can be used by a party effectively to escape liability for bad performance.

In Hackney Borough Council v. Dore (1922) 1 KB 431 it was held that "The expression means some physical or material restraint and does not include a reasonable fear or apprehension of such a restraint".

The expression bears more extensive meaning than "act of God" or vis major. As to delay due to breakdown of machinery, it comes within the words "force majeure", which certainly cover accidents to machinery. The term cannot, however, be extended to cover bad weather, football matches or funeral. Matsoukis v. Priestman & Co (1915) 1 KB 681.

The expression is undoubtedly a term of wider import than vis major. Judges have agreed that strikes, breakdown of machinery, which though normally not included in vis major, are included in force majeure.

In re Dharnrajmal Gobindram v. Shamji Kalidas [All India Reporter 1961 Supreme Court (of India) 1285] it was held that "An analysis of ruling on the subject shows that reference to the expression is made where the intention is to save the defaulting party from the consequences of anything over which he had no control".

Under international law it refers to an irresistible force or unforeseen event beyond the control of a State making it materially impossible to fulfill an international obligation. Force majeure precludes an international act from being wrongful where it otherwise would have been.

In December 2008, Donald Trump claimed that a recession could be a force majeure, though proving it in court would be difficult at best.^[2]. Others, such as Peter Schiff and Jim Rogers predicted the financial events precipitated in 2007.

[edit] Elements

The understanding of force majeure in French law is similar to that of international law and vis major as defined above. For a defendant to invoke force majeure in French law, the event proposed as force majeure must pass three tests:

Externality

• The defendant must have nothing to do with the event's happening.

Unpredictability

• If the event could be foreseen, the defendant is obligated to have prepared for it.^[3] Being unprepared for a foreseeable event leaves the defendant culpable. This standard is very strictly applied:
• CE 9 April 1962, "Chais d’Armagnac": The Conseil d'Etat adjudged that, since a flood had occurred 69 years before that which caused the damage at issue, the latter flood was predictable.
• Administrative tribunal of Grenoble, 19 June 1974, "Dame Bosvy": An avalanche was judged to be predictable since it had an antecedent of half a century past.

Irresistibility

• The consequences of the event must have been unpreventable.

Other events that are candidates for force majeure in French law are hurricanes and earthquakes. Force majeure is a cause of relief from responsibility that is applicable throughout French law.

On the other hand, the German understanding goes under the German translation of vis major (höhere Gewalt) but seems conceptually synonymous with the common law interpretation of force majeure, comprehending both natural disasters and events such as strikes, civil unrest, and war. However, even in the event of force majeure, liability persists in the face of default by a debtor (Schuldnerverzug, cf. BGB §848 (in German) or deprivation of property (Sachentziehung, cf. BGB §848 (in German)).

Force Majeure in areas prone to natural disaster requires a definition of the magnitude of the event for which Force Majeure could be considered as such in a contract. As an example in a highly seismic area a technical definition of the amplitude of motion at the site could be established on the contract base for example on probability of occurrence studies. This parameter or parameters can later be monitored at the construction site (with a commonly agreed procedure). An earthquake could be a small shaking or damaging event. The occurrence of an earthquake does not imply the occurrence of damage or disruption. For small and moderate events it is reasonable to establish requirements for the contract processes; for large events it is not always feasible or economical to do so. Concepts such as 'damaging earthquake' in force majeure clauses does not help to clarify disruption, especially in areas were there are no other reference structures or most structures are not seismically safe. Ref (Spanish) Force Majeure Construction and Earthquakes.

[edit] Sample force majeure clause

"A party is not liable for failure to perform the party's obligations if such failure is as a result of Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity [or telephone service]. No party is entitled to terminate this Agreement under Clause 19 (Termination) in such circumstances."

"If a party asserts Force Majeure as an excuse for failure to perform the party's obligation, then the nonperforming party must prove that the party took reasonable steps to minimize delay or damages caused by foreseeable events, that the party substantially fulfilled all non-excused obligations, and that the other party was timely notified of the likelihood or actual occurrence of an event described in Clause 18 (Force Majeure)."