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01/13/2012

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There should be some give in any contract where notice of a claim is at stake. Many times, either or both the GC and the Sub realize there is reason to give notice because of a lack of accuracy on the design plans or due to a disagreement on an interpretation of the special provision. Yet, while the project is going full speed, they make an attempt to work the problems out without a claim. They don't know the extent of the cost of the claim until the problem is cured. Once notice is given, a 30-60 day period is not enough. There should be extended time once notice is given.
Also, Engineers, Owners and Managers should be punished when they allow a sub to drift along until the problems are cured, and then say "If you don't like absorbing the cost, then file a claim." hoping the claim will be denied due to notice constraints. That's what goes on each day in the real world.

Notice requirements should be strictly upheld. The argument that the cost is not known until later is weak and self serving. If the cost of the entire project can be estimated in advance, then claims can be also. Waiting simply serves to lock in potentially avoidable costs.

Ideally, strict implementation of the Notice of Claims provisions is nice to have but since a contract brings with it certain aspects of personal human relationships, the best way is to strike a balance between strict enforcement and liniency, a process lined with practicality. Identification of key decision makers between the two parties and establishing a common ground. This is important for decisions to be made in a timely and effective manner, where everyone leaves the room happy, yet without sacrificing each one's due diligence.

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