Notice

In the normal course of impact discovery, the Contractor’s field personnel inform, usually verbally, the Owner’s field personnel of the event. Occasionally the impact will be communicated by e-mail or brief letter immediately after discovery. The first step in response is to make a quick evaluation of the impact to determine what immediate effect the impact is currently having on the ongoing work, and if there are means of resequencing or reordering work to eliminate or limit the impact while further investigations and decisions are being made. Crews can often be moved short distances with very little or no disruption in productivity. Along with this immediate response, the occurrence of the event should be broadcast to the project stakeholders, particularly the decision makers who will play a role in resolving the impact. This notification will allow for expedited decision making once all necessary information is gathered.

Following the initial immediate revelation, formal notice should follow very quickly. Formal notice is extremely important, as it is normally a specified requirement within a certain timeframe of the

discovery of an impact, and failure to meet that timeframe can waive the Contractor’s right to damages resulting from that impact. The reason behind this requirement, as stated in RBS Section 105.16,

Submission and Disposition of Claims, is that “early or prior knowledge by the Department of an existing

or impending claim for damages could alter the plans, scheduling, or other action of the Department or result in mitigation or elimination of the effect of the act objected to by the Contractor”. One of the

Owner’s rights in most contracts, and in all VDOT contracts, is to mitigate or in other ways lessen the severity of an impact. In addition, it allows the Owner to review the impact conditions before they are disturbed and establishes a start date for the impact [Bartholomew 2002]. The following notification deadlines are required for various impacts on VDOT projects; project specific provisions may add to or modify this list:

¾ Impact/Event: Words, phrases, clauses or any other portion of the proposal alleged to be ambiguous

RBS Section: 102.04 - Examination of Site of Work and Proposal Notification Time Limit: 10 Days prior to bid receipt

Consequence for Failure to Meet Time Limit: Waiver of right Contractor may have had to his own interpretation of the alleged ambiguity

¾ Impact/Event: Differing Site Conditions

RBS Section: 104.03 - Differing Site Conditions

Notification Time Limit: “Promptly”, upon discovery, prior to disturbance of conditions

Consequence for Failure to Meet Time Limit: No contract adjustment which results in a benefit to the Contractor will be allowed.

¾ Impact/Event: Discovery of defective survey work

RBS Section: 105.10 - Construction Stakes, Lines, and Grades Notification Time Limit: “immediately provide oral and written notice” Consequence for Failure to Meet Time Limit: None stated

¾ Impact/Event: Performance of work without inspection RBS Section: 105.12 - Inspection of Work

Notification Time Limit: “Reasonable notice in writing that the material was to be used or the work was to be performed”

Consequence for Failure to Meet Time Limit: The Contractor may be ordered to remove and replace the work or material at his own expense

¾ Impact/Event: Acts of omission or commission by the Department or its agents allegedly causing damage, a notice of intent to file claim

RBS Section: 105.16 – Submission and Disposition of Claims

Notification Time Limit: At the time the damage occurs, or beginning of the work upon which the claim and subsequent action are based (must be written and before the completion of the event) Consequence for Failure to Meet Time Limit: Waiver to the claim for damages

¾ Impact/Event: Costs for securing railroad flagger or watchperson services RBS Section: 107.08(a) – Railway-Highway Provisions

Notification Time Limit: Before initially starting, intermittently continuing, or discontinuing work on or over the railway right-of-way

Consequence for Failure to Meet Time Limit: The Contractor will bear the added costs of the flagger or watchperson services

¾ Impact/Event: Delaying events beyond the Contractor’s control for which a time extension is requested

RBS Section: 108.09 – Determination and Extension of Contract Time Limit

Notification Time Limit: During prosecution of the work, “timely”, and no more than 60 days after the payment of the final estimate

Consequence for Failure to Meet Time Limit: No contract adjustment will be allowed ¾ Impact/Event: Request for adjustment due to a suspension ordered by the Engineer

RBS Section: 108.10 – Suspension of Work Ordered by the Engineer Notification Time Limit: Within 7 days of receipt of the notice to resume work Consequence for Failure to Meet Time Limit: No contract adjustment will be allowed ¾ Impact/Event: Department notice of delay, neglect, or default

RBS Section: 108.13 – Default of Contract

Notification Time Limit: Within 10 days of the receipt of the Department’s notice

Consequence for Failure to Meet Time Limit: The Commissioner may declare the Contractor in default at any time after this time limit

Despite these clauses, there is some case history that suggests that if failure to give the notice within the required time does not harm or cause an inability in any way for the Owner to investigate, mitigate and/or resolve the impact, then the waiver clause may not be enforced [Wickwire et al 2003]. In general, however, these time limits must be strictly adhered to.

Beyond a requirement for timeliness, Notice must identify the specific impact, the activities impacted, the anticipated effect of the impact, and the perceived timeframe of the impact. In this manner, an impact statement might be written as follows: The Contractor experienced X impact on Y activities and resources, with Z anticipated effect on those activities and resources, starting at T time and possibly extending for an estimated D duration. The key for this notice statement is that it establishes a cause and effect relationship between a change in the baseline conditions of the Contract and the actual conditions experienced in the field. The notice should also identify what actions the Contractor took upon discovery of the impact, including any mitigation actions, and what actions are planned over the course of the resolution period. Any requests for information or current uncertainties should also be stated.