As you probably have guessed, I review a lot of construction contracts. As a Virginia construction attorney, I hope that I get to review these contracts either during the drafting process or prior to my construction clients signing them. Why? Because as I’ve “mused” many times before, I can add value and help my clients more at these stages than during the cost prohibitive claim/litigation stage. I have found that taking the time to clarify, negotiate and understand your construction contract with the help of a construction lawyer is much less costly than waiting and hoping to avoid disaster.
One area that is fraught with disaster if you don’t take the time to understand it, is the area of notices. Every construction contract and subcontract has them. Notices of changed or unforeseeable site conditions; Notices of claim; Change Order notices; Termination Notices. All of these can and always do have strict time and method requirements. Add to that the fact that as a subcontractor, you are likely to have even one more nested set of notice requirements that are found in the prime contract and that are incorporated into your subcontract through an incorporation clause that could shorten your notice requirements and you can see where I’m going with this.
As if we need another reminder, my pal (and fellow construction lawyer) Matt DeVries (@matthewdevries) recently provided a great analysis of a New York case where failure to strictly follow the notice provisions incorporated into a subcontract (in other words, not explicitly stated in the text of the subcontract) cost a subcontractor $200,000.00 in delay damages. While Matt also discusses some leeway where substantial compliance is enough in some states, here in Virginia, strict compliance to the written word is almost always the rule.
If you take two things from this reminder, let them be: 1. Always ask for and review the Prime Contract, you may not be able to change anything, but you need to know whats in it; and, 2. Always review and note the various notice requirements found in your contract. Failure to do these two things can make it impossible to recover should you need to file a construction claim.
As always, I welcome your comments below. Please subscribe to keep up with this and other Construction Law Musings.