Construction contracts often contain notice provisions that a subcontractor must follow to request additional compensation for work performed. While the notice provisions are generally straightforward, they are often one sided and a subcontractor’s failure to follow them may bar the subcontractor’s claim.
A common form of change order is found in the AIA A201, which provides:
Claims by either the Owner or Contractor must be initiated by written notice to the other party . . . Claims by either party must be initiated within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later.
The language appears straight forward, but questions often arise about whether written notice is really necessary. What if you are speaking with the general contractor about your claim? Is it enough that the general contractor has actual notice of your claim, even though it’s not in writing? That issue has often been litigated and the courts have come down on both sides of the fence.
Of course, the better practice is to provide written notice to the general contractor, even if you are communicating with the general about your claim. That may seem like a belt and suspender approach to a situation, but it is always better to say you complied with the letter of the contract than to say that the general contractor knew about the problem.