Late Notice, Buried Tank, and a School Opening Date
A $22 million elementary school renovation is substantially complete except for the kitchen and gym. The contract requires written notice of a differing site condition within 14 days and a claim within 21 days. Excavation for a new storm line exposes a buried fuel tank and petroleum-contaminated soil not shown on the geotechnical report. The superintendent stops work in that area, calls the owner's project manager the same day, and sends an email on day 3 describing the tank but not estimating cost or time. On day 25 the GC submits a $480,000 change order request and 18 days of time extension. The owner denies both, citing late notice and the absence of a formal claim. The school board has a move-in date in 10 weeks. The GC's schedule shows the storm line has 5 days of total float and is not on the critical path.
1. Evaluate the owner's notice defense. Is the GC's day-3 email enough?
Read the worked answer
The day-3 email likely satisfies notice of the condition, because it was written, timely, and described the tank. It probably does not satisfy the claim requirement, because it gave no cost or time estimate and the formal claim came on day 25, outside the 21-day period. The outcome depends on the contract's exact trigger: does the 21 days run from discovery of the condition or from the point the cost and time impact become known? If from discovery, the claim is late. If from quantification, the GC has a stronger argument because contamination extent and disposal cost may not have been known on day 3.
Many courts enforce notice clauses but may excuse strict compliance where the owner had actual notice and suffered no prejudice. Here the owner knew on day 1 by phone and day 3 by email, and presumably investigated. The GC should not rely on that. It should serve a formal claim immediately, state that the impact is continuing, and reserve rights.
2. How should the GC handle the 18-day extension request given the 5 days of float?
Read the worked answer
The schedule analysis should not simply grant 18 days. The storm line has 5 days of total float, so the first 5 days of delay consume float and do not extend the project. Only the delay beyond float potentially extends completion, here 13 days, and only if no other critical work can proceed or be resequenced. If the storm line is not critical and the GC can work elsewhere, the project extension may be less than 13 days or zero.
The GC should submit a time-impact analysis showing the actual delay to the storm line, the float consumed, and the effect on the project completion date. It should also show mitigation: resequencing, temporary routing, or offsite prefabrication. Requesting 18 days when the activity has 5 days of float undermines credibility. The claim should distinguish owner-caused delay from any concurrent GC delay.
3. The school board refuses any extension and demands the 10-week opening. What are the superintendent's options?
Read the worked answer
The superintendent should not simply absorb the risk. Options:
- Phased occupancy. Seek acceptance of the classrooms and admin areas while the kitchen and gym remain under a separate completion schedule, with temporary food service.
- Directed acceleration. Ask the owner to direct acceleration in writing, with a cost proposal for overtime, additional crews, and temporary facilities. If the owner refuses, document that the opening date is at risk.
- Resequencing. Prioritize the kitchen and gym, and move non-critical punch work to a later phase.
- Claim preservation. Submit the time and cost claim, continue work under protest, and keep daily records of the acceleration.
The worst option is to promise the date verbally and then claim constructive acceleration later without a written direction. The superintendent should put the schedule options and their cost to the board in writing, with dates, so the decision is documented.