The Notice provisions of your contract are probably the most important parts of the contract to know and follow.
Most forms of contract (and not just construction contracts) outline specific requirements for formal Notices, both when they are required and how they must be submitted.
So what’s the difference between a Notice and other forms of communication?
Well, if you have ever managed a construction project, you have seen just how many parties are involved, and how many forms of communication are used. From discussions held at meetings and documented on minutes, to conversations on site, frequent phone calls, and the heaps of emails between the various parties, I’m sure you get the gist of just how easy it is for the important matters to get lost in the noise.
By providing specific instructions for communicating the most important matters related to your contract helps to ensure that your vital notifications are communicated to the exact person who needs to see it, when they need to see it.
Because not every contract will have the same requirements for Notices, it is so important to read each contract and refer back to it frequently to ensure you are following it.
Some of the most-common events that will often require a Notice in writing include, but are in no way limited to:
• Upon identification of concealed or unknown conditions.
• To request an extension for delay.
• To submit a claim for a change in the contract price.
• To notify a party of their default.
• To advise of a dispute.
• To request dispute mediation.
Many of these situations require that Notice be provided within a specific timeline. Failure to provide your Notice on time may result in you waiving your right to recourse. For instance, if the contract states that you must provide a Notice within 5 days of receiving a design change to advise of the impact of cost and schedule, and you don’t submit within that timeframe, you may waive your right to a change order. Unfortunately, I have seen this happen far too often.
So, now that you know when Notices may be required, make sure you determine how it must be submitted to make sure you are submitting them correctly.
There will often be a provision within the contract that indicates “Addresses for Notices in Writing.”
- Determine if the company listed the same company who is a party to the contract? Sometimes, the contracting party will want their Notices to be sent to their lawyer’s office or to a parent company.
- Note the fax number (yes, those still exist, although I’m pretty sure the government is the only organization that still requires it). This fax number might be different from their regular fax number.
- Is there an email address listed? Because if not, you will have to submit your Notice the old-fashioned way. If there is an email address provided, it may not be to the same person handling the every-day communication on your project. If this is the case, I would still always recommend copying (cc) that person on those emails.
I hope this gives you a better understanding of not only the importance of submitting proper Notice, but also your right to receive proper Notice from your client or subcontractors. You should not only be diligent about following the contract, but it is just as important to enforce the contract. For instance, if you are back-charged for clean-up costs but were not given proper Notice per the contract, you may have a right to dispute the back-charge.
Questions? Comments? Or need a little help with your contract administration? I’m just a phone call or email away.