A Word to the Wise: The AIA Revised Contract Documents Could Lead to New and Unanticipated Risks - Part II

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George Talarico practices in Sills Cummis & Gross’ Litigation Department. He has represented clients in commercial disputes including toxic torts, products liability and construction. He also has worked in the construction and construction management industries.

October 16, 2018
George Talarico - Construction Executive

Part I addressed general conditions, revised insurance terms, revisions that affect owner’s required insurance and revisions that affect contractor’s required insurance.

REVISIONS THAT AFFECT DISPUTE RESOLUTION

A seemingly minor but noteworthy change is to the definition of “Claim.” Under Section 15.1 a “Claim” is defined to:

  • include a request for a modification of contract time; and
  • exclude any requirement that an owner must file a claim to impose liquidated damages.

Notably, any request relating to contract time must be brought within the specified time period for Notice of Claim and in the prescribed manner. There are at least two traps for the unwary. First, even though email is regularly used for communications among the parties, the revised contract documents do not recognize email as an acceptable form of delivery of a Notice of Claim. Second, an unwary contractor may wrongly assume that an owner’s failure to assert a claim for LDs means that LDs will not be imposed. This may lull the contractor into failing to timely assert its own claim for a time extension and thereby waiving its ability to do so.

Reprinted courtesy of George Talarico, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

Mr. Talarico may be contacted at gtalarico@sillscummis.com



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