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An often-overlooked and procedurally relevant provision of construction documents is that for “giving notice.” What does that mean?
Contracts for construction require that the parties and the design professional give various, contractually-stipulated notices. Such notices are formal, written communications that are, in accordance with the contract, of such importance that they must be transmitted or delivered in a certain manner, so that the receiving entity has a full understanding that they are receiving a formal, contractually required notice.
Various matters in construction contracts require formal, written notice and typically include as notice of: discovery of defective work, delays beyond the contractor’s control, differing site conditions, discovery of unanticipated hazardous environmental conditions, change proposals, claims, filing for dispute resolution, and others. In fact, the General Conditions and other parts of many construction contracts require written notice for a surprisingly large number of events.
Furthermore, this writer has observed that it is fairly common for construction specifications to require “notice” by one party or the other, sometimes for garden-variety matters that may not otherwise, upon careful consideration, rise to the same level as events for which the General Conditions or Agreement require written notices. Requiring “written notice” for routine matters—for example, “Notify Engineer that substrate is ready for application of subsequent coats of paint,” or similar routine matters—should not be over-used. This is to avoid having truly important notices—such as claims and disputes, among others—become submerged or lost in a veritable pile of “notices” for ordinary matters. For routine events, contract documents should perhaps be worded as, “Advise the Architect in writing” or similar language, instead of requiring, “Give written notice to Architect.” To summarize, a formal, written notice is supposed to signal something important and, often, out of the ordinary.
Notices are addressed at Section 1.6 (“Notice”) of the American Institute of Architects’ (AIA) A201—2017, Standard General Conditions of the Contract for Construction. AIA A201—2017 requires that, to be valid a notice must, “be provided in writing to the designated representative of the [recipient]… delivered in person, by mail, by courier, or by electronic transmission if a method for electronic transmission is set forth in the Agreement…. [Except that] Notice of Claims…shall be… delivered to the [recipient]… by certified or registered mail, or by courier providing proof of delivery. ”.
The Engineers Joint Contract Documents Committee’s (EJCDC) C-700—2018, Standard General Conditions of the Construction Contract, Paragraph 18.01 (“Giving Notice”), requires that contractually-required notices be, “delivered: 1. in person, by a commercial courier service or otherwise, to the recipient’s place of business; 2. by registered or certified mail, postage prepaid….; or 3. by e-mail to the recipient, with the words “Formal Notice” or similar in the e-mail’s subject line.”
Thus, AIA documents appear to allow greater liberty for delivery of most notices—including normal U.S. Mail and perhaps even e-mail without specific identification as a notice— except for notice of claims, whereas EJCDC documents’ notice provision applies the same rules to all contractually-required notices. EJCDC also requires that e-mailed notices be explicitly identified as formal notices. Notice requirements in other contracts are likely to differ from the AIA and EJCDC examples presented above.
Failure to furnish a required notice as in accordance with the contract’s notice delivery provision could result in a party or the design professional being deemed as failing to give a required notice; put another way, the notice could be invalid because of how it was delivered. However, in a matter of substantial importance, it may be inadvisable for a party to depend overmuch on the procedural technicalities of the notice clause to escape an otherwise-unpleasant outcome. While it is good practice to never treat the notice requirements lightly, it is also unwise to assume that a certain matter may be unenforceable because of the timing or delivery method of the associated notice. In determining the enforceability of a contract’s notice provision, a court or arbitrator is likely to consider the extent to which other procedural technicalities were strictly enforced throughout the project.
How does one clearly and properly designate something as a contractually-required, formal, written notice? As observed by this writer, many attorneys do so by all of the following:
- Clear Indication of Delivery Method: Include a header at the top of the first page of the letter (or other form of written communication) indicating the mode(s) of delivery, such as, “TRANSMITTED VIA U.S. REGISTERED MAIL/RETURN RECEIPT REQUESTED AND VIA E-MAIL” or similar words.
- Indicate in in the Subject Line: In the communication’s subject line, use clear language such as “Notice of Claim”, “Notice of Differing Site Conditions”, “Notice of Delay”, and forth.
- Cite the Provision: The first paragraph of the notice should explicitly cite the contractual provision requiring the notice, such as, “This letter constitutes formal notice of a Claim in accordance with Paragraph 12.01 of the General Conditions,” or similar working, as applicable.
Although both AIA A201 and EJCDC C-700 appear to leave the door open for issuance of formal notices as less-formal e-mail communications, this writer recommends that all contractually-required notices be on the transmitting party’s letterhead. This will help to differentiate a formal notice from day-to-day project correspondence, which are often performed by e-mail.
Notices should be addressed and delivered to the appropriate representative of the receiving party, who may be other than that organization’s normal, day-to-day contact for the project. For some projects, the designated representatives are to be indicated in writing at or prior to the preconstruction conference. In other contracts, including many of those modeled on EJCDC documents, the person and address for giving of formal notices is expressly indicated near the end of the Agreement. Thus, before finalizing and transmitting a formal notice, the writer should ensure that it is addressed to the proper person and location. If the person to whom formal, written notices are delivered is other than the recipient’s day-to-day contact person, it is often appropriate to copy the regular contact person on the notice.
In closing, the contract clause on how formal, required notices are delivered is important. Comply with such provisions to avoid having an otherwise clearly written and relevant notice be deemed improperly delivered and therefore potentially invalid.
Copyright 2019 by Kevin O’Beirne
The content of this blog post is by the author alone and should not be attributed to any other individual or entity.
Kevin O’Beirne, PE, FCSI, CCS, CCCA is a professional engineer licensed in NY and PA with over 30 years of experience designing and constructing water and wastewater infrastructure for public and private clients. He is the National Manager of Engineering Specifications for HDR, a global engineering and architecture design firm. He is a member of CSI’s MasterFormat Maintenance Task Team and is the certification chair of CSI’s Buffalo-Western New York Chapter. He is an ACEC voting delegate in the Engineers Joint Contract Documents Committee (EJCDC) and lives and works in the Buffalo NY area. Contact: firstname.lastname@example.org.