PCCA Journal 4th Quarter 2013 - page 11

PCCA Journal|4
th
Quarter 2013
11
contract.
• If you can’t completely comply with a notice provision,
comply with the provision as best as possible under the
circumstances.
If you can’t provide an estimate of costs in time, submit
timely explanation of the reasons and immediately fol-
low up in writing when an estimate is available.
If you can’t send certified mail as required by the con-
tract, send an email.
• Provide proper notice of the claim even when an owner
knows about or even directs the work pertaining to the
claim.
• Give notice of a claim even if
the owner has previously paid
a claim without proper notice.
Drafting Best Practices
• As a contractor, make certain
that all notice requirements
flow down to subcontractors
and that the notice provisions
of the prime contract prevail
over any inconsistent notice
provisions in the subcontract.
• As a contractor, consider add-
ing language that subcontrac-
tor’s failure to comply with
notice provisions will waive
the claim.
This should make it easier
to defeat untimely subcon-
tract claims than without it.
• The notice period should be
clear. “Three business days”
is much clearer than “three
days.”
Disputes over whether a
contract meant calendar
days or business days
increase litigation but are
easily avoided with precise
language.
• As a subcontractor, consider
how flow-down provisions
in the prime contract may
reduce notice time periods in
the subcontract.
Matthew Straub is an attorney in the Construction Industry
Group of Ogletree, Deakins, Nash, Smoak and Stewart P.C. He
counsels construction clients on private and public projects
across the country. He emphasizes risk management at the
earliest phases of a project and the prevention and avoidance
of disputes. He develops, negotiates, and drafts contracts,
subcontracts, and other construction documents necessary
for successful construction projects. When litigation cannot
be avoided, he prosecutes and defends construction claims.
He can be reached at (312) 558-1424 or matthew.straub@
ogletreedeakins.com.
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