contract forms require the contractor to issue a submittal schedule for approval before the contractor can assert delay claims regarding the owner's delinquent review of submittals. This typically takes place shortly after the execution of the contract when the contractor is assembling its schedule for the project. The underlined text below represents specific pre-claim requirements.
AIA A201 – Section 3.10.2: Promptly after being awarded the contract, the contractor to submit a submittal schedule to the architect for the architect's approval. If the contractor fails to submit a submittal schedule or fails to provide submittals in accordance with the approved submittal schedule, the contractor shall not be entitled to any increase in the contract sum or contract price based on the time required for review of submittals.
ConsensusDocs 200: ConsensusDocs 200 does not have a requirement for the contractor to issue a separate submittal schedule. However, Section 3.14.1 notes that the contractor shall deliver submittals to the owner and the design professional per the project schedule. Section 3.14.2 indicates that the owner is responsible for the review of submittals within reasonable promptness to avoid causing delays. Thus, the contractor should incorporate submittal submissions and submittal returns into its project schedule.
EJCDC C-700 – Section 2.03.A.2: Within 10 days after the effective date of the contract, the contractor shall transmit a submittal schedule to the engineer for approval. Section 7.16.C requires the engineer to review the submittals per the approved schedule of submittals. Thus, the contractor's claims related to delinquent submittal review should be based upon the approved schedule of submittals.
2. Other Administrative Issues
Most standard construction contracts require an owner decision on administrative issues before an issue should be moved to the claims process. The underlined text below represents the specific pre-claim requirements.
AIA A201 – Section 8.3.1: If the contractor is delayed by actions of owner/architect/separate contractor, etc., then the contract time shall be extended as determined by the architect. Section 8.3.3 notes that Section 8.3 does not preclude the contractor's recovery of delay damages from the owner under other provisions of the contract, such as Article 15. Thus, the contractor should give the architect the ability to render a decision before a claim is initiated.
ConsensusDocs 200: For all other administrative issues, this document refers to Section 8.4, which details formal claim notice requirements. Accordingly, no other pre-claim notice requirements are prescribed.
EJCDC C-700 – Section 11.09.B: The contractor shall submit change proposals to the engineer within 30 days after the start of the event giving rise thereto. Note that the change proposal shall comply with Section 4.05.D–E. The engineer is to render an initial decision on the change proposal within 30 days of proper submission. If the contractor does not agree with the engineer's initial decision, it can move to the dispute resolution procedures in Article 12.
C. Performance Issues
1. Claim for Negligent Acts or Omissions by the Owner that Cause Injury or Damage to the Contractor
When the owner's negligent acts or omissions cause damage to the contractor's person or property, a minority of standard contracts require the contractor to provide notice to the owner, so the owner is provided an opportunity to investigate and possibly mitigate damage. The examples below outline the specific pre-claim requirements.
AIA A201 – Section 10.2.8: If the contractor suffers injury or damage to person or property because of an act or omission of the owner, the contractor shall give notice to the owner no longer than 21 days after discovery so the owner can investigate the matter.
ConsensusDocs 200: Section 10.1.2 notes that the owner shall indemnify the contractor from all claims from bodily injury and property damage by the negligent or wrongful acts of the owner or design professionals, but this form does not require contractor to provide the owner with a specific notice.
EJCDC C-700: Section 7.16.A–B indicates that the owner shall indemnify the contractor from negligent actors or omissions by the owner and engineer, but this form does not require the contractor to provide the owner with a specific notice.
2. Other Owner Performance Issues
Certain standard construction contracts allow the owner to render a decision on performance issues before it moves to dispute resolution. The underlined text below represents specific pre-claim requirements.
AIA A201 – Section 8.3.1: If the contractor is delayed by actions of the owner/architect/separate contractor, etc., then the contract time shall be extended as determined by the architect. Section 8.3.3 notes that Section 8.3 does not preclude the contractor's recovery of delay damages from the owner under other provisions of the contract, such as Article 15. Thus, the contractor should give the architect the ability to render a decision before a claim is initiated.
ConsensusDocs 200 – Section 3.6: The contractor shall examine all items furnished by the owner and shall report any defects in materials or equipment at once to the owner.
EJCDC C-700 – Section 8.01.E: If the contractor's work depends on the work performed by the owner or others, the contractor shall inspect this work and promptly report to the engineer in writing any delays, defects, or deficiencies in such other work.
D. Third-Party Issues
Certain standard construction contracts require an owner decision on third-party impacts before such a claim moves to dispute resolution. The underlined text below represents specific pre-claim requirements.
AIA A201 – Section 8.3: If the contractor is delayed by force majeure events, abnormal weather, and/or other causes beyond the contractor's and the owner's control, etc., then the contract time shall be extended as determined by the architect. Thus, the contractor should give the architect the ability to render a decision before a claim is initiated. If the contractor disagrees with the architect's position, the contractor shall issue a claim per Article 15.
ConsensusDocs – Section 6.3 and Section 8.4: Section 6.3 covers, among other things, contractor impacts from third-party issues such as labor disputes, acts of terrorism, epidemics, etc. Section 6.3 refers to Section 8.4, which outlines the claim notification process, so no pre-claim notifications are required.
EJCDC C-700 – Section 4.05 and Section 11.09.B: Section 4.05.C indicates that if the contractor is impacted due to issues that are not the fault of the owner or the engineer, the contractor is entitled to an extension of time as its sole remedy and, per Section 4.05.D.3, such an extension is subject to the provisions of Article 11. Per Section 11.09, the contractor shall submit change proposals to the engineer within 30 days after the start of the event giving rise thereto. The engineer is to render an initial decision on the change proposal within 30 days of proper submission. If contractor does not agree with the engineer's initial decision, it can move to the dispute resolution procedures in Article 12.
E. Change Order Negotiation Issues
Standard construction contracts typically include procedures to address the scenario where the contractor and the owner cannot agree to the terms of a change order. Here, there is no dispute over whether or not the contractor is entitled to a change order, it is just a dispute
