There is a category of contractual provision that does more damage than any other: the notice that has to be given within a stated period, failing which the right it protects is lost. Whether your contract contains one, and whether it was complied with, is among the first questions in a contractual entitlement review.
These provisions are not hidden. They are usually written plainly and read quickly at tender, and their effect is felt eighteen months later by people who were not in the room.
What makes a notice a condition
Language that ties the right to the notice. Wording to the effect that entitlement arises only if notice is given within a stated period, or that no entitlement arises unless the notice is served, is doing something quite different from wording that simply requires notification.
The distinction is not always obvious and it is ultimately a legal question rather than a commercial one. What is clear commercially is that provisions drafted in that form are intended to operate strictly.
Amended contracts contain them far more often than standard forms do, because they are an effective way of transferring risk without appearing to change the substance of the bargain.
Where a provision is in that form, treating it as administrative is the expensive mistake. It is part of the entitlement.
Where they usually appear
Around claims for additional time, where notice of delay within a short period is frequently required. Around claims for additional cost, where notification of the matter and sometimes of the likely effect is required.
Also around instructions, where some contracts require a contractor to notify promptly that something constitutes a variation rather than performing it and valuing it later.
And around events outside the contractor’s control, where notification within a tight period is often a condition of any relief at all.
Why they are missed
The periods are short, often measured from awareness rather than from the event, and awareness is a moving target on a busy project.
The obligation falls on people who are dealing with the problem itself. A site team managing a genuine difficulty is not naturally thinking about the contractual clock.
And the consequence is invisible at the time. Nothing happens when the period expires; the effect only appears when the claim is made, by which point it cannot be cured.
The businesses that comply reliably have made notification a standing process rather than a judgement, which is the only approach that survives a busy month.
What a compliant notice usually needs
To be in the form the contract describes, served on the person the contract names, by the means it permits, within the period it sets.
To identify the event rather than the general situation. A notice referring to ongoing difficulties is weaker than one naming the event and the date it occurred.
To say what it is. A notice given under a specific clause should say so, because the recipient’s obligations may differ depending on which provision has been invoked.
And to be kept. A notice that was served and cannot be produced is, for practical purposes, a notice that was not served, which makes the transmission record as important as the document.
What to do when one was missed
Establish the position honestly first. Whether the notice was a condition, whether anything was served that might satisfy it, and what the contract says about late notice.
Look for other routes. The same facts sometimes engage more than one provision, and a route that was not notified may sit alongside one that was.
And consider what the other side actually knew. Where the matter was discussed, recorded in minutes or responded to in correspondence, the factual position may be better than the formal one, though that is a legal question rather than a commercial certainty.
What does not help is asserting the claim as though the notice issue did not exist. It will be the first thing raised, and a claim that ignores its own weakness loses credibility on everything else.
Preventing it
List the notice provisions in your contract at the start of the project, with their periods and their form, on one page. Most contracts have fewer than ten that matter.
Give somebody the job of serving them, and make notification the default response to any event that might carry a claim. A notice that turns out to be unnecessary costs nothing.
Resist the idea that notifying damages the relationship. On well run projects notices are routine, and it is the project where they arrive only in a crisis that treats them as hostile.
Where a client or contract administrator reacts badly to routine notices, that is worth addressing as a working practice rather than resolving by serving fewer of them.
Where this sits
Notice compliance is not claims work. It is project administration, done monthly, by people on site and in the commercial team while the events are happening.
It is also the single highest return activity in construction commercial management, because it costs almost nothing and preserves everything that might later be worth money. That makes it cost control and variations work rather than anything adversarial.
Where notices were missed and a claim is already in difficulty, establishing what survives is a defined exercise, and it is better done before a position is stated than afterwards.
Each of the claims and dispute services begins with that question for its own subject, because a notice problem affects a payment cycle, a variation and an extension of time in different ways and has to be tested against the provision that actually applies.
Not sure whether the contract gives you a route?
A contractual entitlement review tests whether the contract gives a right to additional payment or time for what happened, before anybody argues about what it is worth.