Holloway Consulting’s experience as Construction Scheduling Consultants is that the contractor’s failure to provide proper notice may invalidate an otherwise meritorious acceleration claim.
CPM SCHEDULING CONSULTANTS
FAILURE TO PROVIDE TIMELY NOTICE
Failure to provide proper notice may invalidate an otherwise meritorious acceleration claim. Even if the contractor is entitled to a time extension due to an excusable delay, the contractor’s failure to notify the owner may invalidate a constructive acceleration claim, and the contractor’s actions to accelerate may be deemed voluntary. Such decisions by the courts are based on the owner’s right to investigate the relevant information and mitigate the potential cost impact before additional costs are incurred.
Three of the most commonly employed defenses to circumvent their failure to provide proper written notice are:
1. The owner’s position or options were not prejudiced by lack of notice;
2. The specifications were defective resulting in a constructive change not subject to the notice requirements set forth in the changes clause; and,
3. The owner “knew or reasonably should have known” that a claim would be forthcoming.
In both the first and second defenses, the matter of the owner being prejudiced by lack of notice bears consideration. Constructive changes, even if caused by defective specifications, will often be subject to the prejudice argument prohibiting contractor recovery for costs which may have been avoided or mitigated had the contractor given timely notice.
Call Steve Holloway – – at (303) 984-1941 to discuss your construction scheduling consulting needs.
CPM Scheduling Consultants
12081 W. Alameda Pkwy., #450
Lakewood, CO 80228-2701
Denver Phone: (303) 984-1941
International : (888) 545-0666
Fax: (303) 716-0432
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