|Technology often improves the efficiency and swiftness of business communications. Increasingly, many project owners, design professionals, construction managers as advisor (CMa), and contractors rely on e-mail or messages sent via online project document management systems for routine, written communications.
While improved efficiency and speed are the benefits, there are drawbacks to relying “too much” on e-mail and other, similar, less-formal types of written communication while implementing a capital project, including:
- Potential for important or consequential communications, including contractually-required notices, to be mistaken as routine correspondence and not properly recognized.
- A tendency to write less-formally and quickly for e-mails and messaging, which has potential to not properly communicate important matters, especially for serious topics or concerns.
- The ease of nearly instantaneous transmissions may be to the sender’s disadvantage when communications are written in anger or other less-than-fully-professional frame of mind.
Some people may use types of electronic communication that are even less formal than e-mail or document management system messaging, including: instant messages via applications such as Microsoft Teams or Cisco Webex, cell phone text messages, and social media messaging such as Facebook, Twitter, and others. Such informal means of communicating complex business-related matters are not recommended by this writer. Even more than e-mail, they are typically conversational and informal, although they do result in a written record that may be difficult to eliminate if desired. Some employers’ systems log and save all instant messages automatically, unless the user explicitly disables recording/storing.
There are advantages to sending an “old-fashioned” business letter in many situations. A formal letter, written on the letterhead of its author’s organization, may carry increased perceived weight, compared to an e-mail or electronic message, and thus better communicate the importance and gravity of the matter at hand.
While implementing a capital project, letters may be desirable for situations such as:
- Transmitting proposals or other business offers, including requests for amendments or changes in contractual compensation or time of performance.
- Communications that are deliverables under the design professional’s or CMa’s scope of services. See, “Award Recommendations: Guideline for Design Professionals”, previously posted on this writer’s blog.
- Contractually required notices, such as: notice of differing site conditions, notice of discovery of apparent hazardous materials, notice of defective work, notice of delay, notice of a claim, written decisions on change proposals and claims, demands for dispute resolution, notice of termination, notice of change of principal personnel engaged on the project, and others. See “Giving Notice: What It Is and How to Do It”, previously posted on this writer’s blog.
- Communications of a sensitive nature, such as those addressing work that is behind schedule. See “Liquidated Damages: Enforcing Damages for Late Completion”, previously posted on this writer’s blog.
- Correspondence that is lengthy or addresses complex matters.
Business letters should be on the author’s organization’s official letterhead, indicating the organization name, address, and telephone number. The letter should clearly indicate the date; recipient’s full name, title, and address; the subject of the correspondence; and an appropriate salutation. Where the letter constitutes an official notice required by contract or law, it is also useful to indicate, just above the date, the transmission method, such as, “Transmitted via US Certified Mail/Return Receipt Requested, and via e-mail,” or “Delivered via overnight express courier and via project document management system,” or other appropriate language.
The letter’s recipient should be the appropriate person for the matter at hand. Some contracts may stipulate that contractually-required notices must be delivered to a specific person. Certain, important matters may perhaps best be addressed to a higher-level person in the recipient’s organization above the day-to-day project team.
Business correspondence is not a mystery novel, where reading the entire text is entertainment before the perpetrator of the crime is revealed. Rather, business correspondence should communicate up front the basic point of the document, and present the substance of the matter afterward. Such an approach aids in effective communication and the reader’s comprehension.
Regardless of its use or, indeed, whether written on letterhead or otherwise, correspondence by owners, design professionals, CMa’s, or contractors should always be: professional, even-handed, largely related to contractual obligations and factual events, as objective as possible, and written so that its author will not be embarrassed to have the correspondence appear as an exhibit in litigation or other form of dispute resolution. Judgements, accusations, controversial or subjective statements, and other potentially inflammatory language should typically be avoided. While writing such communications, ask yourself, (1) “Would I say this to the recipient’s face, whether in a meeting with others or in private?”; (2) ”Would my employer, client, or I be embarrassed if parts of this communication appeared in a local newspaper story about the project?”; and, (3) “How would it look if this correspondence came into the hands of the opposing party’s legal counsel?”
Presented below are examples of writing from a hypothetical situation of notifying the contractor of defective work. The first example employs ill-advised language for a business letter:
“The anchor bolts holding the pre-engineered metal building to its foundation are defective work. The cost will be deducted from payments to your firm. They are installed to insufficient depth, despite us repeatedly telling you, in writing and onsite, how they should be installed. This is the fifth instance of shoddy work on this project.”
In contrast, the following example better-addresses the same hypothetical situation:
“We must inform you of an unfortunate matter on the Project: the anchor bolts attaching the pre-engineered metal building to its concrete foundation are non-compliant with both Drawing S-16 and Paragraph 3.3.D of Specifications Section 13 34 19 – Metal Building Systems, because they are installed with insufficient depth into the concrete, some by as much as four inches. We believe this makes the building non-compliant with both the applicable building code and the wind design criteria indicated in Paragraph 2.1.C.5 of Section 13 34 19. We previously indicated in our comments on approved Shop Drawing 13 34 19-002-B that embedment depth of the anchor bolts, which was not clearly shown on the subject shop drawing, needed to be sufficient to withstand the required wind loading. This must be remedied as soon as possible. If not remedied within 30 days, we will need to recommend the Owner withhold payment for the metal building work. We are available to meet with you, either via conference call or at the site, to discuss this matter.”
A letter’s closing should indicate how the reader may contact the author; indicate either “Sincerely,” or “Very truly yours,”; the author’s organization name; the author’s signature; the author’s printed name and title; enclosures, if any, to the letter; and the names and employer of any people receiving copies of the letter. Recipients of copies should be people involved in the matter at hand and judiciously selected.
In the modern era of preparing and sending electronic letters, the frequency of receiving unsigned letters is sometimes surprising. The author’s signature on correspondence indicates the letter is legitimate and properly conveys the signatory’s sentiments. For this reason, letters that are either unsigned or feature only a non-secure, computer-generated “signature” might, perhaps be regarded as unofficial or incomplete.
When sending an e-mail or electronic message, it is often tempting to hit the “send” button almost as soon as the communication is written. In contrast, the process of writing a formal letter is marginally more-involved and therefore often allows greater opportunity for reflection on the document’s content before it is transmitted. When possible, allow a day or two to pass before transmitting the letter. This allows not only opportunity for quality control (i.e., review and comment on the letter by others familiar with the project and matter at hand) but also allows passions to cool and time to consider alternative wording. Such reflection, and its attendant revisions to the correspondence, often improves the communication and may help preserve professional relationships.
Preparing certain correspondence on letterhead does not preclude sending via modern transmission methods. A letter, even those closing with a real, “wet” signature, can be easily scanned to a portable document format (PDF) file and transmitted electronically as either an attachment to an e-mail or uploaded to an online document management system. Ensure that contractually required notices are transmitted via the delivery method(s) specified in the contract.
Regardless of whether the correspondence is a letter or other, less formal written communication, project participants should understand and comply with attorney-client privilege, when applicable. Such correspondence must typically be transmitted to or copied to the sender’s organization’s legal counsel and clearly labeled, “Privileged and Confidential” and/or, “Attorney-Client Communication”. Privilege and confidentiality may perhaps not apply unless governing law and rules are heeded. Routine matters should not be labeled “privileged and confidential”. In some jurisdictions, only certain individuals may have the right to privileged communications with the entity’s legal counsel. Be aware of the rules before committing truly sensitive matters to writing. An oral discussion with leadership or the firm’s legal counsel may be necessary to learn the “rules” and does not leave a trail of documentation.
A well-written, professional letter, on the author’s letterhead, helps convey formality and importance and helps the recipient avoid misinterpreting the matter as just another item of routine correspondence. As you implement design and construction projects, consider whether significant correspondence should be prepared as a letter. Despite advances in modern communication methods, there is still a lot to be said for old-fashioned business letters.
Acknowledgments: The author gratefully acknowledges the assistance of Jerry Cavaluzzi, Esq., vice president and general counsel at Kennedy/Jenks Consultants, and Jim Brown, PE, vice president in construction management at Arcadis, for reviewing and commenting on drafts of this article.
Copyright 2022 by Kevin O’Beirne
The content of this blog post is by the author alone and should not be attributed to any other individual or entity.
The author of this blog post is not an attorney and nothing in this blog post constitutes legal advice. Readers in need of legal advice should consult with a qualified, experienced attorney.
Kevin O’Beirne, PE, FCSI, CCS, CCCA is a professional engineer licensed in NY and PA with over 30 years of experience designing and constructing water and wastewater infrastructure for public and private clients. He is the engineering specifications manager for a global engineering and architecture design firm. He has been a member of various CSI national committees and is the certification chair of CSI’s Buffalo-Western New York Chapter. He is an ACEC voting delegate in the Engineers Joint Contract Documents Committee (EJCDC) and lives and works in the Buffalo NY area. Kevin O’Beirne’s LinkedIn page.