3.5.15 Notice

In a modern general contract, there will be literally dozens of references to some kind of “notice” requirement as related to almost anything. Most critical will be those relating to changes and claims, but they can apply to many other items.
It is not necessarily the date of the first formal correspondence that qualifies as the effective notification date. Notification can most often be considered to have been achieved if there has been an understanding in the mind of the recipient. The purpose of “written” notification is simply to remove doubt as to when this had been achieved. Notification, therefore, can sometimes be said to have occurred in many types of communications, including:

• Telephone or other conversations
• Meetings
• Other letters
• Shop Drawings
• Schedule Updates

It is not a good feeling to have lost a legitimate issue on technical notification grounds; don’t put yourself or the Company into that position. When in doubt, get some kind of notification confirmed.
Such notification for a specific kind of issue (change order, for example) will be required to be in writing, and delivered within a precise number of days of the issue’s “occurrence.” It is important to realize, however, that it can be argued that the operative date beginning the notification period will be from the point at which it was first realized that there will definitely be an effect on the contract time and/or cost—not the point at which it was simply realized that an event occurred.
Be aware of your notice requirements in your specific agreements and comply with them in all cases. In so doing:

1._ Always establish the earliest possible legitimate date_. If the issue was discussed at a job meeting or in a phone conversation, refer back to it in the first part of the notification. “Confirming our conversation of (date),” will be enough.
2. Notify everyone who might possibly require it. Do this either directly or by copy.
3. Specifically name the individual(s) involved in the prior notification. “Confirming my conversation with your office,” is too weak. Give names.
4. Get into the habit of confirming all potentially significant discussions immediately. Any piece of information that has any potential to affect the project should be recorded in a manner that corresponds to the level of potential effect. Even if a seemingly insignificant item begins as a plain note in a file, it can form the basis of a later formal notification if one becomes necessary.
5. Be concise, but be clear. Refer to Section 2.3.2, “Rules of Effective Project Correspondence,” and apply them in all your communications.

As a practical matter, then, the reason for “notice” with respect to changes or potential changes on a construction project is to provide the party being notified with the opportunity to determine for itself whether or not a change to the contract must proceed, and if so, the manner in which it will proceed. Timely notice may provide such a party with opportunity to mitigate such changes or to otherwise impact the manner in which a change will proceed. Under these conditions, it is commonly recognized that if a party is not given timely notice, it may be stripped of opportunity to deal with the change, and its rights may thereby be prejudiced.
In the above example, the case of delay to a project caused by rain, however, notice simply affords the owner the opportunity to satisfy itself as to the fact of the rain delay and to create any related documentation that it deems appropriate. In this condition, notice does not afford the owner any opportunity to alter the effect of the rain delay on the project, or otherwise mitigate such a change. Because of this, the owner’s rights with respect to such rain delays may not be prejudiced in any manner if notice is not deemed proper for any reason. If proper notice were indeed lacking, the only issue to be resolved would be agreement between the owner and contractor on the actual condition of the rain event itself.