More Effective Communications Between Parties to Construction Contracts

More Effective Communications Between Parties to Construction Contracts

December 28, 2022

Successful business is built on clear communications that verify that what I expect from you aligns with what you expect from me. As work advances, that means checking-in to confirm that things have not changed or, more likely, to update expectations because things have changed. The goal is to communicate effectively and to preserve a record so that, if you need to in the future, you can reliably demonstrate what both sides said. Doing this well requires some thought, attention and effort.

Where previously you would place a call, most people today are inclined to text. Texting can be an efficient way to communicate a single point but, unlike a phone call or face-to-face conversation, it does not easily allow for broader discussion. Texting your client that pressure treated lumber is now $10.88 per 2x4x8 might not avoid billing issues as effectively as you might hope, especially if your text is “PTL 10.88 k?” Just as often issues originate with clients. Their text: “need u 2 save sod” does not explain that they expect you to remove, preserve and reinstate sod and pay you only for excavating.

The fact that the client texts you does not change the importance of you being able to demonstrate what you thought was clearly understood at the time. Speaking directly can facilitate broader discussion but you still need a written record to avoid issues if people question what exactly was said. Text messages may be in writing, but even when you can identify the relevant thread, looking back over it is usually less illuminating than you might hope. A letter written as a timely follow-up or a clear notice of something that needs attention is usually a much more effective tool.

Circumstances dictate what is specifically appropriate, but the following checklist should help to keep the recipient focused and promote the objectives of effective communications:

  1. Read over and correct what you have written. Mistakes in spelling and grammar distract from the message and diminish your credibility. Software can identify errors that you might miss. Likewise, swearing and overly-familiar language can detract from a clear message. Consider whether hearing someone read your letter out loud might be embarrassing. The goal is clear communication, not great literature and certainly not entertainment or shock value.
  2. Getting and holding attention is difficult. Identify why you are writing and restrict your letter to that topic. If you have more than one reason to write, consider sending separate letters. Be specific in subject lines so that the reader not only knows which project, but also the specific purpose of the letter. Consider whether headings and subheadings would facilitate understanding.
  3. Accurately date your letter. If it takes time to finalize, use the date that it is “signed off” and ensure that references to timing (such as “yesterday on site…”) remain accurate.
  4. If a contact person is designated, ensure that they sign. Otherwise have the individual appropriate for the subject matter sign, and clearly indicate their name and position.
  5. Keep the content of the letter concise. People “tune out” easily. Avoid repetition. Refer to supporting explanations and details succinctly and attach them as clearly marked schedules that can be reviewed when the reader is able to focus on more detail. Repeating your last letter with a few word changes here and there is unlikely to bring home your point. Make the point clearly and include reference to your last letter. Attach a copy if that is helpful but what looks like the same letter sent twice is usually ignored.
  6. Strive for plain language and avoid long sentences and unfamiliar words. Affirmative and straightforward statements are more compelling than run-on sentences.
  7. Strive for statements of fact and avoid opinions or assumptions. Ensure that facts are accurate and not exaggerated. Avoid qualifiers like “presumably” or terms that attribute motivation as opposed to simply stating the facts.
  8. Where possible, be specific in identifying obligations. For example, instead of saying that progress claims take too long for approval, say that under clause 14 process claim are to be processed within twenty days. Avoid lengthy quotes where a summary is reasonable and always be careful that references are accurate.
  9. Identify applicable action items / action dates, such as by saying that the next step in proceeding with a change is to finalize the contract change order and that sign off is needed in 15 days to accommodate scheduling. State consequences factually, without aggression and not as a threat. In that same example, consider whether it is adequate to state that site directions without a formal change order would be in breach of contract instead of threatening to walk off the job and sue if the representative on site keeps directing your crew to do extra work. Never raise consequences that you are unwilling to enforce.
  10. Maintain a professional tone, even if you are responding to correspondence that does not. Making or defending personal criticisms distracts from the substantive issues. If necessary to address unprofessionalism in the other party’s approach, use constraint. For example, try stating that the tone of their letter was unconstructive and that you are focusing your response on the issues. The objective is to get communications back on track and keep them there. Stay mindful that unresolved issues often lead to other people reviewing your communications. Your position is often improved if you are seen as the reasonable solution-oriented professional.
  11. Even if transmitted by email, prepare a letter for attachment instead of a message within the email platform. Email rarely has the same opportunity for review and revision or sober second-thought before it is sent.

Procrastinating should not be confused with taking appropriate time to respond; avoidance rarely improves a difficult situation but well thought-out constructive communications save time in the long run. Protecting your interests merits timely and strategic communications. If you have a contract, always confirm that you are compliant with notice terms and details. Whenever you are unsure, seek assistance.

Your intention is always to preserve your interests and resolve any conflicts. When that is not possible, a clear record is critical to a successful process for resolution.

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Cox & Palmer publications are intended to provide information of a general nature only and not legal advice. The information presented is current to the date of publication and may be subject to change following the publication date.