In construction, mining and engineering projects, accurate and accessible documentation is not a luxury – it is a legal, financial and often more importantly, an operational necessity. Yet, too often, documentation is treated as an afterthought.
We frequently encounter situations on infrastructure projects, short term and long term, where we are unfortunately exposed to the alarming reality of what happens when recordkeeping is neglected during the course of the project. Arguably, the longer the project, the more critical the impact of poor recordkeeping becomes.
Modern contract administration increasingly requires digital recordkeeping. Given that project sites are typically harsh and corrosive environments, it is critical that all project documentation be digitally backed up on a central server. Yet even where such systems exist, the digital record is often incomplete or inconsistently maintained, undermining the very purpose of having a backup.
If a project lacks a complete central digital backup, one would at the very least expect orderly physical archives of site diaries, progress reports, and daily records. It is, however, not unusual to find towering piles of unsorted boxes with no filing system, no document management platform, and no clear trail to follow. As a result, what should be an organised record becomes an exercise in forensic archaeology. Days are lost to sifting through disorganised records, inflating legal costs, delaying case preparation, and ultimately risking a compromised legal position in dispute resolution. Contemporaneous and accurate record keeping is accordingly a necessity for proper contract administration throughput the lifecycle of any project.
The Legal Weight of Documentation
Across the standard form engineering and construction contracts commonly used in South Africa namely the JBCC, GCC, FIDIC and NEC suites of contracts, proper recordkeeping is treated as an integral contractual obligation. Below is a non-exhaustive list of key provisions from each suite that illustrate how central accurate records are to contractual compliance and dispute resolution:
Under the JBCC Principal Building Agreement (Edition 6.2, 2018):
- Clause 3.1 obliges the Contractor to perform the works in compliance with the contract documentation, including drawings, instructions and the programme.
- Clauses 17 and 30 require accurate records. Clause 17 governs the issuing of contract instructions, while Clause 30 sets out the dispute resolution process. Without reliable records and proof, a claim or defence may fail before it even begins.
- Clause 23, when claiming revision of the date for practical completion, requires the claim to inter alia stipulate the cause and effect of the delay on the current date for practical completion, where appropriate, illustrated by a change to the critical path on the current programme, all of which requires proper documents, record keeping and proof of the surrounding facts and circumstances.
- Clause 25 requires the Contractor under the payment provisions to provide all required documents and quantified amounts of work duly executed and to assist the principal agent in the preparation of cashflow statements and payment valuations.
Under the GCC (Third Edition, 2015):
- Clause 6.5.3 requires the Contractor to maintain detailed records of the execution of the works and to provide the Employer’s Agent with access thereto.
- Clause 10.1.3 obliges the Contractor to keep accurate records to substantiate claims for payment.
Under the FIDIC Suite (2017 editions):
- Sub-Clause 20.2.3 requires the claiming Party to keep contemporary records of events giving rise to the Claim.
- Sub-Clause 6.10 requires the Contractor, unless otherwise agreed with the Engineer, to provide specific and detailed records as part of each progress report submitted under Sub-Clause 4.20 [Progress Reports].
- Sub-Clause 20.2 requires claims to be supported by records that demonstrate the effect of the event or circumstance on time and cost. Absent such records, the Contractor risks forfeiting entitlement altogether.
- Sub-Clause 20.2 requires a Notice of Claim (within 28 days) as soon as practicable following awareness of an event, and a fully detailed Claim (within 84 days), which must include “all contemporary records on which the claiming Party relies”.
Under NEC4:
- Clause 13.1 provides that each communication which the contract requires must be communicated in a form which can be read, copied and recorded.
- Clause 50.9 requires the Contractor to notify the Project Manager when a part of Defined Cost has been finalised and makes available for inspection the records necessary to demonstrate that it has been correctly assessed.
- Clause 52.4 requires the Contractor to allow the Project Manager to inspect at any time within working hours the accounts and records which it is required to keep.
- Clause X15.4 (when Option X15 is used) requires the Contractor to retain copies of drawings, specifications, reports and other documents which record the Contractor’s design for the period for retention.
- For compensation events (Clause 61.3), the Contractor bears the burden of notifying and substantiating with supporting records. Without accessible documentation, even valid claims may collapse.
In short, documentation and contemporaneous recordkeeping is the backbone of any claim or defence. It is the evidence adjudicators, arbitrators, and courts rely on to decide whether or not liability, entitlement, and quantum have been proven.
Risks for Clients: Beyond Legal Fees
Parties often assume that document control is solely the contractor’s concern. This is a dangerous misconception. When disputes arise or regulators require proof of compliance, poorly managed documentation exposes parties to severe risks, including:
- Lost Claims: A single missing site instruction or unsigned variation order can wipe out a claim worth millions.
- Prolonged Legal Proceedings: Legal teams forced to dig through “file dumps” and thousands of disorganised documents waste time and increase costs considerably.
- Contractual Non-Compliance: Failure to maintain proper records can constitute breach of contract. This can justify default notices, withholding payment, or even termination in extreme circumstances.
A Call for Proactive Document Management
The lesson is clear, document control and proper recordkeeping is not administrative housekeeping, it is risk management and asset protection. Disorganised archives are more than an inconvenience; they can determine the outcome of multimillion-rand disputes.
Every project should therefore establish:
- A document control protocol setting out responsibilities and processes;
- Indexing systems for incoming and outgoing correspondence;
- A dedicated document controller or administrator; and
- Archiving procedures that preserve accessibility and navigation, not just storage.
At the end of a project, when claims surface and disputes are tested, the paper trail often makes or breaks the case. A claim, or defence for that matter, is only as strong as the records and the individuals recording it. Project stakeholders should treat document management with the same seriousness as design, compliance, or safety. The difference between success and costly failure may well depend on whether the crucial documents are properly preserved and accessible — or lost in a dusty box.