Giving notice and claim procedures

More construction claims are lost on notice than on any other single issue. A contractor can be right that the owner caused a delay, right that the delay was critical and right about what it cost, and still recover nothing because it did not give written notice in the form and time the contract required. CON-220 introduced notice as 'the condition that decides most delay claims'. This lesson looks at notice and claim procedures in practical detail: what the standard forms require, how courts and arbitrators treat late or defective notice, how to build a notice system on a project, and how a claim moves through the contract's steps before it becomes a dispute.

Why contracts require notice

Clauses requiring notice have a legitimate purpose. They give the owner a chance to investigate while the facts are fresh, to change its instructions or its design to reduce the cost, to adjust its budget and financing, and to avoid being surprised by a large claim at the end of the job. A contractor who tells the owner promptly that a design problem is delaying the steel gives the owner the option to accelerate the redesign, to resequence the work or to accept the delay knowingly. A contractor who says nothing until the final account takes those options away.

Giving notice also protects the contractor. A prompt, clear notice fixes the date the issue was raised, shows that the contractor was not responsible for the silence that followed and starts the clock on the owner's obligation to respond. Many claims that succeed do so because the contractor's notices built a clear record, month by month, that the owner chose not to act on.

What the standard forms require

A201-2017 requires that claims be initiated by written notice within 21 days after the occurrence of the event giving rise to the claim, or within 21 days after the claimant first recognizes the condition, whichever is later (§15.1.3). Claims for additional time must include an estimate of the cost and probable effect of the delay, and for weather the contractor must show that conditions were abnormal for the period and had an adverse effect on the scheduled construction (§15.1.6 deals with the waiver of consequential damages and §15.1.5 with time claims; check the numbering against your edition). Concealed conditions must be reported promptly and before the conditions are disturbed, in any event within 14 days of first observance (§3.7.4). On federal work, the FAR changes clause limits recovery for costs incurred more than 20 days before written notice of a constructive change, and requires the contractor to assert its right to an adjustment within 30 days of a written change order. Supplementary conditions often shorten these periods or add content requirements, so read them together with the printed form.

Condition precedent or not?

The legal effect of missing a notice deadline depends on the wording of the clause and on the law that applies. If the contract says, clearly, that notice within the stated period is a condition precedent to any adjustment, courts and arbitrators in both countries generally enforce it, even where the result seems harsh. If the clause simply says the contractor 'shall give notice' without stating the consequence of failing to do so, a late notice may reduce the claim only to the extent that the owner was prejudiced by the delay, or may not affect it at all.

US courts are split. Some enforce notice provisions strictly as conditions precedent, particularly where the clause says so expressly. Others, especially in federal contract law since Hoel-Steffen Construction Co. v. United States (Ct. Cl. 1972), apply notice requirements liberally where the government had actual knowledge of the facts and was not prejudiced by the lack of formal notice. State law varies widely, and some states treat express condition-precedent wording strictly while others look for prejudice. The safe assumption on any US project is that notice deadlines will be enforced as written.

What a good notice looks like

A notice does not need legal language, but it does need to be clear. The test is whether a reasonable reader at the owner's office would understand, from the notice alone, that the contractor is asserting a right to more time, more money or both, and why.

Short and early is better than long and late. A one-page notice sent the day the problem is discovered, followed by updates, is far more valuable than a forty-page claim six months later. The notice should be sent to the person and address the contract specifies, by the method it allows; a notice emailed to the wrong person, or raised verbally at a site meeting and recorded only in minutes that the owner's representative did not approve, invites an argument that notice was never given.

Site meeting minutes are a useful supplement but a poor substitute. If the contractor raises an issue at a meeting, it should follow up with a formal written notice, and it should check that the minutes record the issue accurately. Minutes are usually prepared by the consultant or owner, and a contractor that does not correct inaccurate minutes at the next meeting may be taken to have accepted them.

A notice system for the project

Because notice deadlines are short and events are frequent, notice cannot depend on someone remembering. A contractor's notice system usually has four parts: a list of the notice requirements in the contract, with the clause, the trigger and the period; a log of events that might require notice; templates for each type of notice; and a weekly check of the log against the deadlines.

# Compliance check of notices for Ashford (A201 21-day period, illustrative dates)
import datetime as dt

limit_days = 21   # calendar days after the event or first recognition
events = [  # event, occurrence or first recognition, notice date
    ("Contaminated fill under leisure pool", dt.date(2026, 4, 2), dt.date(2026, 4, 6)),
    ("Roof truss capacity problem", dt.date(2026, 5, 12), dt.date(2026, 5, 22)),
    ("Late approval of pool tile layout", dt.date(2026, 6, 15), dt.date(2026, 7, 9)),
    ("Utility service connection delayed", dt.date(2026, 8, 24), dt.date(2026, 9, 4)),
]
for name, start, sent in events:
    days = (sent - start).days
    ok = "compliant" if days <= limit_days else "LATE"
    print(f"{name:<38} {days:>2} calendar days  {ok}")

Contaminated fill under leisure pool    4 calendar days  compliant
Roof truss capacity problem            10 calendar days  compliant
Late approval of pool tile layout      24 calendar days  LATE
Utility service connection delayed     11 calendar days  compliant

The check shows one late notice: the tile layout approval delay was not notified within the period. Kestrel Ridge should still send the notice immediately, explain why it is late and reserve its rights, because a late notice is usually better than none, and the owner may not rely on the deadline. But it should also expect the city to argue that the claim for that event is barred, and it should consider whether the time and cost involved are worth pursuing. The point of the weekly check is to catch these problems while they can still be fixed.

From notice to claim

After notice, the contract usually requires a detailed claim within a period after the event ends, or at intervals for continuing events. The detailed claim sets out the facts, the contract basis for entitlement, the schedule analysis supporting any extension and the quantum, with supporting documents. Lesson 8 covers how to present a claim; here the point is procedural. The detailed claim must arrive on time and in the form required, and it should be complete enough that the owner or consultant can decide it. A claim that says 'amounts to be confirmed' months after the event, without good reason, invites the response that it was never properly made.

Under A201-2017, claims are referred to the Initial Decision Maker, who is the architect unless the parties name someone else. The Initial Decision Maker reviews the claim, may request more information and renders a written decision, which is binding unless challenged. A party that disagrees must demand mediation within a short period after the decision, or the decision may become final and binding (§15.2.6.1, check your edition's wording). The time limits for moving from one step to the next should be calendared as carefully as the original notice.

Owner responses

Owners have procedural obligations too. Many contracts require the owner or consultant to respond to a claim within a defined time, and some say that failure to respond is deemed a rejection, which starts the clock for the next step. An owner who ignores a claim does not make it go away; it may lose the chance to influence the outcome and may face a stronger claim later, supported by evidence that it did nothing. Good owners acknowledge notices promptly, ask for the information they need, decide what they can and explain what they cannot.

Owners should also be careful with their own conduct. Telling a contractor to proceed and 'we will sort out the money later', approving extra work informally or encouraging acceleration without saying who will pay can all undermine the owner's later reliance on notice provisions and written change requirements.