Written Notice Requirements: Legitimate Protection or Legalistic Trap?

Construction contracts are rife with requirements that the contractor provide the owner or owner’s representative with written notice of occurrences: delay, changed work, unforeseen site conditions, anything that can lead to a contractor's claim for relief under the contract. The issue which arises time after time is whether the contractor’s failure to provide timely written notice deprives the contractor of a remedy.

Usually, if the project owner had actual knowledge of the occurrence and was not denied any legal or practical options, the owner cannot use lack of written notice against the contractor. Differing site conditions, however, are a challenge in this regard. Once a physical condition has been disturbed or work has continued, the owner’s ability to respond to the situation may have been compromised. Notice requirement are more strictly enforced in this context.

This was illustrated in a recent Kansas case. The contractor failed to provide timely written notice of ground water conditions, but contended the project owner was well aware of the situation from the outset. The court had to decide whether to strictly enforce the written notice requirement or to adopt the more lenient approach used in federal construction contracting. The court elected strict enforcement.

As always, I welcome your comments on these issues. Are written notice requirements a reasonable tool for protection of project owners’ legitimate interests? Or, are they simply a legalistic device for tripping up the unwary contractor? As a contractor, do you always – as a precautionary policy – give written notice of every “occurrence?” When you do provide written notice, what sort of a response do you receive from the owner or its representative?

Bruce Jervis, Editor
Construction Claims Advisor

Comments

[Anonymous]

In my experience reasonable notice requirements are legitimate and are essential to protect the owner's interests and allow the owner to mitigate the issue. It also allows contemporaneous evaluation of costs.

In most cases providing notice is not an onerous requirement. A simple, short letter satisfies the requirement. We request the notice, but we also ask every week in the progress meeting if there are any potential impacts on the horizon. We really would prefer to catch problems early when we can influence the outcome.

[Joel Niemi]

For public work in Washington state, the "Absher" and "Mike M. Johnson" cases have established pretty clearly that if a claim is not in writing and not made in a timely manner - however the contract describes timeliness - the contractor loses the ability to sustain a claim.

[Ed Carey]

I think notice can take place by other than a specific written letter to the owner. Notice can be part of the weekly progress meetings or reports, notice can be the documentation of the issue in daily reports that are shared with the owner. Ultimately, the contractor and Owner should discuss and refine what is acceptable as reasonable notice, during the contract negotiations.

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