When a construction claim becomes time-barred, the contractor is generally responsible. A time-bar is a contractual deadline that requires a contractor to notify or submit a claim within a specified period. If the claim is submitted after this deadline, the contractor may lose the contractual right to claim additional time or compensation.
Why Is the Contractor Usually Responsible?
- Missed Contractual Deadlines
Construction contracts clearly define the timeframe within which claims must be submitted. For example, under many standard forms of contract, such as the JCT and FIDIC contracts, contractors are required to notify claim events within a specified period after becoming aware of the event. - Waiver of Contractual Rights
Failure to submit a claim within the prescribed timeframe may result in the contractor being deemed to have waived their entitlement to an extension of time, additional payment, or both. - The Condition Precedent Principle
Many construction contracts make timely notification a condition precedent. This means that serving a valid notice within the required period is a mandatory prerequisite to preserving the right to make a claim.
When Can Responsibility Shift?
Although the contractor is usually responsible, there are circumstances where the employer, engineer, or contract administrator may bear responsibility or be prevented from relying on the time-bar.
- Failure to Issue Required Notices
If the contract requires the employer, engineer, or project manager to notify the contractor of a relevant event and they fail to do so, the contractor may not be prevented from pursuing a claim. - The Prevention Principle
The prevention principle prevents an employer from benefiting from delays or losses that they have caused. Where the employer’s actions are responsible for the delay, strict enforcement of a time-bar may not always be upheld. - Waiver or Estoppel
If the employer or contract administrator consistently accepts late notices without objection, they may be considered to have waived their right to enforce the contractual time-bar or may be estopped from relying on it later.
Best Practices to Avoid Time-Bar Risks
- Record and monitor all delay events as soon as they occur.
- Submit written notices immediately in accordance with the contract requirements.
- Understand the notice provisions and claim deadlines before the project begins.
- Maintain comprehensive project records to support any future claims.
Understanding and complying with contractual notice requirements is essential. A valid claim submitted late can be just as ineffective as no claim at all.
