Can I lose a variation claim by notifying it late?
Yes, under some subcontracts, so check the notice rules in yours as soon as a change comes up.
Updated: . By Jack Butler-Kettle, Construction Claims Consultant.
The answer
Find out what triggers a notice, who must send it, to whom and how. Check whether a first notice must be followed by details, updates or a separate notice about time. Under some clauses, the timing affects whether you are paid at all; others work differently. What a late or incomplete notice does depends on the exact wording, any amendments and the evidence. Keep the original message and proof that it was sent. A holding notice does not always replace the details that must follow. Notifying does not protect every cost and time point either. If a notice has gone in late or incomplete, take the wording to your solicitor.
Example
Illustrative example. The scenario and figures are invented.
The facts
A steelwork subcontractor is told to add a plant room mezzanine. Its subcontract appears to require notice of the effect on the price within a set period, followed by details. The notice must take a form the subcontract recognises.
What happens
- The subcontractor records the instruction, its date, the person the subcontract names to receive notice, the proof of sending and the clause itself.
- It sends the required notice to that person.
- It keeps the later cost and programme records.
- If the notice turns out late or incomplete, the parties look at the wording, the amendments and any advice.
The outcome
The notice stands on the recorded clause and the proof of sending. A short message is not automatically a complete notice, or protection for the claim.
To have the notice and confirmation periods your subcontract sets mapped and met on every change, see our Unpaid Variation Prevention service.