Although the anticipation of a dispute or claim is the thought farthest from an owner’s mind when their project is being advertised to bid, careful bid preparation, follow-through documents, and preservation and retention of appropriate records are important for an endeavor as complex as a construction project. An owner and his or her design consultants must prepare succinct, detailed documents all along the path from soliciting bids through bid acceptance and on to preconstruction, construction, and postconstruction, not anticipating any serious problems along the way but prepared to deal with them if and when they occur. And it all starts with the invitation to bid.
All such documents, either formal or handwritten, should be kept on file. More than one owner has said, in the midst of a dispute, “ Boy, I wish I had not thrown away those papers. ”
Our concern now is retention of those instructions, forms, responses by bidders, and other data distributed or received during this process. These are the prebid records that should be retained:
- The invitation to bid and the responses to the invitation — those contractors who accepted the offer and those who did not.
- A list of those contractors who either accompanied the architect on a site tour or walked the site on their own; this will come in handy if there are any claims later on that a condition was unknown even though it would have been apparent during a site visit.
- Minutes of any prebid meetings, and questions raised and by whom and responses by the architect or engineer.
- Any proposed schedules issued by the architect and any responses or comments registered by the contractors.
- Photographs taken by the design consultants or the owner of the site at the time of the prebid conference.
- Logs of any telephone calls or copies of any e-mails relating to questions, comments, or responses to or from any contractors, architects, engineers, or the owner relating to the prebid activity.
As the bids are received, all responses should be retained, whether a bid was unacceptable or under consideration for award. The process by which bids were analyzed — questions asked of bidders, responses, related e-mails — should all be retained. If a few contractor interviews were held, detailed comments arising from the interviews should be attached to the appropriate contractor file. Any notes, scraps of paper bearing any relation to the review of bids, calculations, or estimates are to be retained.
A record of any suggestions, changes, or comments regarding the content of the contract should be kept. Was the contractor concerned about the schedule? What were his comments, and what was the owner’s or architect’s response? Did the contractor seem hesitant about accepting a specific provision in the contract? What were your thoughts about why he was hesitant? A year and a half or two years later, when memories become vague, these types of notes may prove beneficial.
In the public sector, some government agencies require the contractor to review and sign each plan in the set of contract drawings and to initial every page in the specification manual to defuse any claim that the builder did not notice some detail or other. This set of initialed documents is retained by the owner along with the executed contract. Any comments pertaining to the plans, specifications, contract, or any of its attachments should be recorded. A simple question such as “ Do you have any questions about the project’s plans, specifications, or contract provisions? ” will suffice The contractor’s answer is to be noted along with the question.