In the absence of a specific notice provision, the law will usually impose a “reasonable” amount of time for notice based on the applicable facts and circumstances. However, many contracts have a specific notice provision for claims, backcharges, default and termination. Unfortunately, most of these provisions have incredibly short notice periods, some as little as 24 hours, which depending on the day of the week, may be problematic.

An example is:

“The Subcontractor agrees that should it at any time refuse or neglect to supply enough workmen or materials of the proper quality and quantity, or fail in any respect to prosecute the Work with promptness and diligence, or cause or contribute to the delay or interference with the Work, or fail to make prompt payment for labor, materials, equipment or supplies, or fail in the performance of any duties or obligations in this Contract, then Contractor shall be at liberty, in its sole option, without prejudice to any other remedy, after 24 hours written notice to Subcontractor, to provide through itself or others, any such labor or materials to perform Subcontractor’s Work, and to deduct the cost thereof from any money due or thereafter to become due to Subcontractor.”

Therefore, one of the first things to consider is the amount of time that is given. Remember that 72 hours is not the same as three business days. Think about the amount of time needed to address most issues and propose that period, be it five, seven or ten days, for example.

Second, ensure that the notice is in writing so there is no misunderstanding or confusion that the notice was in fact given. Ideally, identify the person or persons that will receive that notice and the manner of that notice, be it email or postal mail.

Third, consider extending this notice and opportunity to cure to all types of claims, be they clean up, backcharges, default, and termination, just to name a few.

An example is:

“Contractor shall give detailed written notice to Subcontractor’s senior project executive along with seven calendar day’s opportunity to diligently commence the cure before Contractor may impose any claims, backcharges, work or material supplementation, default or termination.”

If you have a short notice window in your contract upstream, for example with the owner, you may be at risk if you provide a greater amount of time or manner of notice to your subcontractors. Most contractors should try to ensure that they are not providing greater rights to their subtrades than the obligations they have upstream to their contracting counterparty.

We hope this helps you understand the construction contracting process a little better. If you have questions about your contract, send us an email or give us a call (https://www.thelienzone.com/contact/). And make sure to check out our other free tools (https://www.thelienzone.com/tools)and our weekly podcast (https://www.thelienzonepodcast.com/).