Verbal Instruction, Late Notice, and a Request to Backdate
During excavation for a storm drainage line, the contractor's crew exposes an uncharted fibre-optic duct crossing the alignment. The owner's site representative verbally instructs the project manager to relocate 40 m of storm drain around the duct and says, 'Proceed - we'll paper it later.' The work costs $18,400 and delays the drainage crew by four days. The contract requires written notice of a differing site condition within seven days of discovery, and written authorisation for changes. The contractor's written notice is dated day 12. The owner now refuses the claim on the basis of late notice and no written change order. The owner's representative then suggests the contractor date the notice day 5, 'because everyone knew about it anyway, and the claim is obviously valid'.
1. Assess the contractor's entitlement. Does the late notice defeat the claim?
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Entitlement has two separate questions: whether a compensable event occurred, and whether the contractor preserved its rights.
On the event: an uncharted fibre-optic duct in the excavation is a classic differing site condition. The owner's site representative also gave a direct instruction to relocate the drain, which is a change to the work. The cost ($18,400) and delay (four days) are causally linked to that instruction.
On notice: the contract requires written notice within seven days. The contractor gave it on day 12, so it is late on its face. Whether that defeats the claim depends on the contract's notice clause and the governing law. Many contracts treat notice as a condition precedent; others allow relief where the owner had actual knowledge and was not prejudiced. Here the owner's representative was present at discovery and gave the instruction, so actual knowledge is strong and prejudice from five days' delay may be hard to show. That is an argument, not a guarantee.
Conclusion: the claim is arguable on the merits but exposed by the late notice. The contractor should not assume entitlement; it should pursue the claim while acknowledging the notice issue and demonstrating the owner's knowledge and lack of prejudice.
2. What should the contractor have done at the time, and what records are needed now?
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At the time: issue a written notice immediately on discovery, even a one-page letter, and follow it with a detailed claim. Confirm in writing that the site representative's verbal instruction is understood as a change, and state that the contractor is proceeding under protest pending formal authorisation. Ask for confirmation of the representative's authority to instruct changes. Record the duct location, the instruction, the time, and the personnel present.
Records needed now:
- the daily site diary and photographs of the duct and the relocated alignment;
- the identity and authority of the person who gave the instruction;
- the original and revised drawings, and the survey record of the duct's position;
- labour, plant and material records supporting $18,400, including the four-day delay and its effect on the programme;
- correspondence showing when the owner first knew, and any later acknowledgement;
- the contract clause and the notice provision relied on.
A claim is built from contemporaneous records. Reconstructed records are weaker and invite challenge.
3. How should the contractor respond to the suggestion to backdate the notice to day 5?
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Refuse. Backdating a notice is a false record. It misrepresents when the contractor knew and when it acted, and it undermines the credibility of the entire claim - including the parts that are true. If the document is later examined against emails, site diaries or delivery records, the contractor risks losing the claim and its professional standing.
Alternative: keep the notice dated day 12 and address the lateness openly. State the facts: the owner's representative was present, gave the instruction, and had actual knowledge from the day of discovery. Argue that the owner suffered no prejudice and that the verbal instruction itself constituted authorisation. Offer to provide any further records.
Professional practice point: an engineer or project manager who is asked to alter a record should decline, explain why, and document the request. The correct response to a weak notice position is a stronger factual case, not a falsified date.