Once the dust has settled after a remodel or new construction is completed, it is tempting to put the project in the rear-view mirror and move on. However, that can lead to problems down the road if the construction project has not been properly documented. At the end of the process the owner should be in possession of all documents related to the project, from start to finish.

The owner should obtain and preserve all documents related to the project. These documents typically include contracts, change orders, architect or designer communications, photos and videos, samples and other physical objects, warranty and instruction information, notes from meetings, and correspondence. It is easy to overlook items like emails and text messages but it is important to collect and retain these as well. When a project involves an owner’s representative or project manager, all documents related to the project should be turned over from the representative or manager to the owner.

The owner should have a clear policy on how and where the documentation is to be retained. It may be best to print emails and text messages and file them with the other paper documentation. Keeping the documents in a safe location is equally important, as we have seen several instances where construction documents were ruined by flooding or a fire.

Finally, it is important to retain documents for a proper length of time. It won’t be helpful to an owner trying to sort out a construction issue or question if the documents are gone. Clients sometimes ask how long documents should be retained. Given that claims and questions can arise for years after a project is completed, the best course of action is to retain the documentation for at least 12 years.

In Oregon, there is a time limit for a school district, or any property owner, to raise concerns with its contractors about potentially faulty construction workmanship. Pursuant to Oregon Revised Statutes 12.135(2), a school district as a public body has 10 years from “substantial completion” of a construction project to file a claim against a contractor for faulty construction workmanship. This is an absolute outlier date, called a statute of repose. No claims may be brought beyond that date, unless a contractor or product manufacturer agrees to an extended warranty.

Within those 10 years, other deadlines apply. Recently, the Oregon Supreme Court made important decisions which affect those other deadlines, called statutes of limitations. In Goodwin v. Kingsmen Plastering, Inc., 359 Or 694 (2016), the Supreme Court ruled that a school district has just two years to file a claim against a contractor for negligent or faulty construction workmanship, measured from when it “knew or should have known” of “the injuries or damage that form the basis of their claims.” In the complicated field of building performance, two years is not a lot of time for facilities professionals to recognize and diagnose performance issues. Compounding the difficulty, the Supreme Court’s decision may start the clock from when the District’s facilities professionals first start noticing problems, for example problems with a buoyant gymnasium floor, an underperforming HVAC system, or leaking windows. Even with outside assistance, it can take a lot of investigation to determine who may be at fault for a problem, and therefore what contractor may be the subject of a claim. In the meantime, potentially, the clock may be ticking under Goodwin while investigations are underway.

An unfortunate side effect of the Goodwin decision is that it increases the pressure on school districts to investigate and make claims against contractors. To protect themselves, school districts should advise their facilities professionals to be diligent in reporting concerns. If a concern is reported, school districts should reach out to contractors who may potentially be involved and ideally sign “tolling agreements,” stopping the clock on claims while investigations continue. If contractors are not amendable to this, they may put themselves in the position of forcing a claim process with the school district.

This issue of “discovering” a claim may also come up with respect to claims for breach of contract. Currently, the safe bet is that a school district has six years from the date a contract obligation is breached to raise a claim. That is typically understood to be the date of performance, i.e. the date of faulty work itself, not the date any damage or fault is discovered (when the district discovers symptoms of a problem). In the months ahead, the Oregon Supreme Court may consider expanding the concept of “discovery” to contract claims, which may provide some relief to school districts already under increasing pressure to investigate problems and pursue contractors who may be at fault.

Over the next few years, school districts across the state will spend millions on construction and renovations. It is an exciting time; schools are testing new products, new building control systems, and new methods and components. Since facilities managers are responsible for operating these systems for years to come, they have several things to consider if called on to help select or operate a new system. Facilities managers should make sure that any problems are quickly addressed by the manufacturer, design team, or construction team, so that those responsible will be accountable for the continued performance of the property.

What is the product history?

New roofing materials, energy efficient materials, and window systems are coming to market every year. Have project team members used them before? Has the architect met with the manufacturer, or any other school that has used the materials, to determine if this product is a good fit? The right roof for the Bend-La Pine School District may not be the right roof for the Salem-Keizer School District. If your District is going to be the guinea pig when evaluating a new product or system, at least make sure everyone knows that, and takes all reasonable precautions.

What is the expectation for maintenance and tune-ups?

If other project members have prior experience with the system, what have they learned? Facilities managers should be sure to document operation recommendations they receive, and establish a checklist for following them. Likewise, facilities managers should be sure to review operations manuals for new construction.

What if you see a problem?

If a system is not performing, document the problem and contact the manufacturer and installer. If you are not satisfied with their response, you can also reach out to the original design and installation team for support. Often, the problem may not be with the product or system itself, but how it is used with related products or systems. Document your efforts.

If the problem is still unresolved, talk with your administrators about the District’s rights under its warranties and contracts. Ultimately, everyone’s job is to keep the school facility up and running to support the faculty, staff, and students. Most often, the strength of a claim is established by the actions of facilities managers and school administrators long before a dispute or claim arises. With advanced planning and frank talk with project team members, Districts will enjoy their new investments for decades to come.