It’s been understood that there are three stages of construction – design, bid and build. The fourth assumed stage? Litigate!
According to Arcadis’ 2021 Global Construction Disputes Report, the average cost of disputes in 2020 for North America was $37.9 million, more than double 2019’s $18.8 million. That’s a sobering figure for the construction industry, one whose influence on your business can’t be downplayed.
Arcadis declared the number one source of construction disputes was the owner, general contractor and/or subcontractor failing to act in agreement with contractual obligations. Other common grounds for litigation are quality of construction, project disruptions, failure to pay and jobsite injury.
Timeliness, or lack of it, is a headlining topic with disputes. Lack of instant access to documents leads to drawn-out court cases. In 2020, the standard time to solve a dispute was 14.2 months. That’s over a year of your company’s time, energy and money put toward a case that could have been avoided.
Further hindering a decision? Court backlogs. The pandemic jammed our judicial system, closing state and federal facilities for weeks or months at a time. Cases can’t proceed in a judicious manner, putting projects at a dead end. The swamped legal system has caused many to settle swiftly to determine matters, whether they are liable for the dispute or not.
Document, document, document!
You cannot over-document what you do. The more data you collect, the better you safeguard your business against litigation. With cloud-based software such as SmartUse, you’re able to retrieve documents anytime, anywhere, helping avert disputes with data at your fingertips.
OSHA insists that all employees have and use safe tools and equipment, and that the equipment is appropriately maintained. You’ll want to have documentation on hand to provide this. Also, you need to have standard operating procedures documented and communicated to your employees to help ensure they are following safety and health requirements. You can examine a complete breakdown of what an employer’s responsibilities are at OSHA’s website.
Anticipate and avoid danger with software
Great hardware is nothing without equally great software. Construction managers have more software options at their disposal to manage the safety of their worksite than ever before.
Construction management software
Construction management software can assist in your keeping essential documents to help ensure you’re in compliance with OSHA regulations. Many have a document management feature that is explicitly geared at collecting and arranging documents for trouble-free retrieval.
This is also a great opportunity to enhance the documentation you’re already doing. Create a documentation plan, with the assistance of a legal counsel, that will make clear precisely what must be documented and when.
Utilizing a documentation system like this can drastically cut the costs of research and lessen associated legal fees. True, the lawsuit may not vanish, but you’ll spend a heck of a lot less time preparing against it. The nastiest court cases are the ones that just might have been avoided with suitable documentation, so reduce risk by tracking your documents in real-time beginning with the planning phase of the project.
Software and mobile apps
Today, there are software and mobile applications to help administer all aspects of a construction project. From preconstruction to scheduling, from project management and field reporting to overseeing your back office, there’s a software solution to help streamline your processes and enhance productivity.
Most such software solutions are cloud-based, accepting changes and updates to documents, schedules and other management tools to be completed in real time, enabling better communication and teamwork.
As just mentioned, mobile technology allows for real-time data collection and transmission between the jobsite and project managers in the back office. Such cloud-based solutions allow on-site employees to submit timecards, expense reports, request for information (RFIs), work records and other verified data. This can save hundreds of hours per year in data entry and automatically arranges important files – no more shuffling through files searching for old reports.
More and more software providers are forming strategic partnerships to enable you to seamlessly incorporate your data with other software solutions, making it easier than ever to run your business.
Photos, photos, photos
These visual tools can make or break a dispute. Photos must be timestamped and incorporate data about the location. They also need to accurately secure the finished task or issue at hand. A weakly-framed photo can make most any job site look dreadful, while a detailed photo will capture the necessary evidence. Remember, it’s all about the proper perspective.
Detailed schedule delays
Weather and jobsite conditions are the principal reasons in scheduling delays. You need to keep track of anything that you have no control over that leads to work interruptions. It’s possible, for example, your team was able to work through a heavy rainfall day, but flooding triggered the cancellation of material deliveries, pushing the job completion date ahead. Another important issue to document is if a segment of the jobsite could not be worked on as a sub-contractor didn’t finish their work on schedule.
Fine-tooth comb your contracts
What’s the only predictable thing in a construction project? Nothing. That’s right, most anything will run counter to your plan. Before you reach an agreement on any project, take the time to examine each and every detail of the contract. A well-written agreement will show you how to deal with any issues and disputes.
Understand the significance of documentation early on. If you put it off into post-construction for attorneys to settle, you’re asking for major time and money losses. SmartUse can be helpful in tracking your data now to mitigate risk and litigation down the road.
Collect daily logs
Dailies need to be very well-organized and searchable without difficulty. Be sure to produce a record of everything, including work completed, photos, plan markups, punch lists, deliveries made (or delayed), equipment and materials used and schedule delays.
Maintain searchable records
If your current document management system includes a bunch of papers jammed into dusty binders, this one’s especially for you. When it’s crunch time, how are you going to know precisely where that one needed daily report is stored? What if someone threw it out, or it got misplaced over the years?
If you are unable to pull up paperwork to prove that something did or didn’t happen – your claim is a lost cause. The proof is in the pudding – and in this instance, the pudding is the documentation.
You know what’s difficult to keep track of? Specific pieces of paper. You know what’s not? Neatly stored files in a cloud-based system.
What about safety in the workplace?
Construction firms have an opportunity to adopt technologies with a low barrier to entry. As you’ll see, it’s not essential to make a hefty investment to see a measurable and meaning impact on safety.
Connected hard hats. Perhaps the jobsite’s most enduring visible protective gear, the humble hardhat has been upgraded. Today’s hardhat features integrated sensors that can monitor a worker’s location, motion and temperature. The sensors can detect if a worker is overly fatigued or has fallen and trigger an emergency call to first responders.
Smart clothing. In addition to hardhats, workers can slip on a safety vest that is anything but normal. These wearables come outfitted with a range of safety-focused tech, from biometrics and environmental sensors to GPS and location trackers to voltage detectors.
Augmented reality. Artificial intelligence and machine learning are already making a real difference. For example, AI-powered goggles can scan and monitor job sites for safety hazards or detect whether a worker is wearing the correct personal protective equipment.
Legal implications of technology in construction
There are any number of areas in which advances in technology in the workplace have drastically altered nearly every aspect of day-to-day life.
Let’s take a few minutes to discuss one such area — the use of wearables.
Not surprisingly, high-tech technologies such as wearables have made their way into the construction industry. This kind of technology guarantees to re-shape the industry’s productivity and safety standards as they are currently recognized.
In an industry as aggressive as construction, staying current on the latest technological offerings can be crucial. Equally important, however, is recognizing and appreciating the risks and liabilities that come with each new technological development.
What exactly is a wearable?
While there is no generally agreed-upon designation of wearable technology, the key elements are that they: (1) are carried or worn on – even inserted in – the user; and (2) track and collect data about the user.
The ways in which wearables gauge and monitor the user and their surroundings are nearly unlimited, but the most everyday sensors used in wearables include GPS, accelerometers and gyroscopes, electrodes, thermometers and proximity sensors. The information gathered from these sensors can be used to measure such diverse things such as location, movement, heart rate and weather.
As these wearables are put to more complex uses, commercial applications – ones wherein wearables are utilized as specific tools in the company’s business – are on the rise.
The construction industry is more than ready for wearables. Many of the concerns that take the time and consideration of managers – such as safety, personnel management and fulfillment – are areas where wearables can stand out. These could involve the wearable vest with tracking abilities, fatigue-monitoring hardhats and smartwatches intended to measure efficiency and boost safety.
There’s also a possible legal side to wearables. For example, in an employment-discrimination lawsuit, information collected to track and enhance productivity just might be used to verify that an employee’s termination was definitely warranted and not just a pretext. Likewise, a defendant in a workplace-injury lawsuit might employ data from a wearable to disclose a different account about an incident than the one in the plaintiff’s grievance.
While legal benefits offered by wearables are easy to envision, so are the possible downsides. For example, what if a worker is hurt after counting on a device that failed to identify a risk? Or what if an employee abuses the technology and intensifies the extent of his own risk of injury?
There are numerous legal concerns fostered by technology, such as wearables, that companies in the construction industry need to be alert to.
All of this indicates that construction industry participants will need to work with cutting-edge legal counsel who can foresee issues affecting the industry.
Contractors will need to think about how their business may progress when drafting agreements and devising their future needs. Additionally, they need to recognize that litigation could be more problematic, necessitating their planning ahead and working proactively. Of course, companies must take advantage of new technologies to save time and work better. However, they must also anticipate how their business will be transformed and plan appropriately.
Expect the unexpected
The bottom line: no matter how carefully you follow these tips to escape construction litigation, there’s still a possibility you’re going to find yourself smack-dab in the middle of a dispute on you next project.
That said, it’s crucial to take all these issues into account when planning and beginning a project. Clear-cut communication, detailed contracts, orderly documentation and appropriate safety training all help with efficiency and when worked on proactively, can save you in a dispute situation.
True, taking care of this in pre-construction as well as during the course of a project seems overwhelming, and you may not have kept to this set of rules during previous projects, fear not. With current technology and software, it’s now easier than ever to gain access to the right tools to steer clear of construction litigation.