Notice of delay

When the contractor becomes aware that something is likely to delay the works, it gives written notice to the superintendent. The notice identifies the cause and the expected effect. It is an early warning, not the full claim.

Most contracts then require a separate, more detailed claim for an extension of time within a set period, setting out the cause, the facts, the effect on the programme and the number of days claimed. Under AS 4000-1997, clause 34 sets out both steps: prompt notice of a probable delay, then a written claim within a fixed time after the delay occurs.

Giving notice early also gives the superintendent a chance to respond, for example by directing a change in sequence, issuing information or directing acceleration.

• The cause. What happened, such as a late design response, a latent condition, a variation, wet weather or a delay by the principal.

• The date it started. When the event began or when the contractor became aware of it.

• The expected effect. Which activities are affected and whether practical completion is likely to be delayed.

• The contract clause. The clause the notice is given under, and any other clauses that may apply.

• Supporting records. Photos, RFIs, correspondence and site diary entries, or a note that they will follow with the claim.

• A statement that more detail will follow. Make clear the contractor reserves its right to claim time and any related costs.

Many contracts include a time bar: if notice or the claim is not given within the period set by the contract, the contractor loses its right to an extension of time for that delay. Courts in Australia have generally enforced clearly drafted time bars, so missing a deadline can cost a valid claim.

If the contractor loses its right to more time, it can be exposed to liquidated damages for the period of the delay, even when the cause was outside its control. Some contracts give the superintendent a discretion to grant an extension anyway, but that power is not guaranteed and should not be relied on.

Notice periods vary widely. Standard forms use short periods measured in days, and principals often shorten them further in special conditions. Check every contract and every subcontract, because the periods may differ.

• Waiting until the delay is clear. Most contracts want notice when a delay is likely, not after it has happened.

• Giving notice verbally or in meeting minutes. Unless the contract allows it, notice must be in writing to the right person at the right address.

• Mixing up notice and claim. A notice of delay is not usually the extension of time claim. Track both deadlines.

• Not flowing notices down or up. Subcontractor notices must reach the head contractor in time to meet the head contract deadlines.