By Bruce Jervis
It is common for construction contracts, particularly public works contracts, to require written notice of any claim for changed or extra work. The notice must be submitted within a stipulated number of days of the event giving rise to the claim and must itemize the increased costs the contractor expects to incur. Failure to give proper timely notice constitutes a waiver of the claim.
These notice-of-claim provisions are generally enforceable against contractors unless the project owner, through its conduct or otherwise, has waived the requirement. There are limitations, however. The contractual notice requirement applies only to work defined within the four corners of the contract.
An example is found in a recent case from the state of Washington. The contract was silent regarding the contractor’s methods or sequencing of the work. The owner issued a directive altering the contractor’s planned sequence of work, a plan relied on when bidding the contract. The contractor was entitled to pursue a claim for its increased costs despite noncompliance with the notice-of-claim procedure.
This is a fine line. Work defined within the contract necessarily includes matters reasonably inferable from the express terms of the contract. Yet, if the contract is silent regarding a fundamental issue – such as the sequencing of the work – shouldn’t such matters be exempt from the contractual notice-of-claim requirement? Your comments are welcomed.
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