The rock was theirs. You paid for it.

The rock was theirs. You paid for it

Eighteen weeks of Risk closed on a number and a clause. The rock under the northern half of the site was worth $48,450 — seventeen of forty-two piles at $2,850 each, the reactive rate, because nobody had planned for it. And Risk Week 14 established that under the Red Book the ground was the employer's risk.

Both of those are true. The contractor paid for the rock anyway.

Not because anybody disputed the clause. Because the site engineer wrote an email on a Tuesday describing what the piling rig had hit, sent it to the resident engineer he spoke to every morning, and got back three words: noted, discuss Thursday. Forty-one days later the commercial manager asked to see the notice. There was no notice.

The net margin on this job is $48,163. The rock was worth $48,450. One letter, never written, cost slightly more than the entire profit on a million-dollar contract.

That is what this track is about. Track 1 taught you to read a project's time. Track 2 taught you to read its money. Track 3 taught you to price what has not happened yet. This one is about the machinery that decides whether any of it is still yours by the time you ask for it.

The clock does not start when you notice

Sub-clause 20.2.1 Notice of Claim gives the claiming Party twenty-eight days. The interesting part is what the twenty-eight days run from.

Not from the day you decided this was a claim. Not from the day the cost was quantified. The period runs from the day the Party became aware of the event or circumstance — or should have become aware of it.

Those five words move the start date backwards, and they move it out of your control. The driller's log recorded the change in penetration rate on day one. The rig's own performance data showed it. A competent contractor watching his own plant should have known that day. So the clock may have been running for a fortnight before anybody in the office used the word “claim”.

This is why the number of days matters less than the discipline. Twenty-eight days is generous if you start counting on the right day and fatal if you don't.

Not reduced. Discharged.

Most people assume a late notice weakens a claim. It feels proportionate: you were slow, so you get less.

That is not what the contract says. If the Notice of Claim is not given within the twenty-eight days, then there is no additional payment, the Contract Price is not reduced where the employer is claiming, the Time for Completion is not extended, and the other Party is discharged from any liability connected with that event.

Read the last part again. Not reduced. Discharged. The entitlement does not shrink by some percentage reflecting how late you were. It stops existing, and the party who owed you the money owes you nothing.

The rock does not become cheaper. The ground does not become your risk. The clause still says what it said. You simply have no route to the money it describes.

The letter that has to say it is a letter

So the site engineer's email fails. It is worth being precise about why, because the reasons are all separate and each one is enough on its own.

Sub-clause 1.3 Notices and Other Communications sets out what a communication has to be. It must be in writing, and it must be either a paper original signed by the authorised representative or an electronic original sent from the system named in the Contract Data. If it is a Notice, it has to be identified as a Notice. It has to be delivered by hand or courier against receipt, or through that electronic system. And it has to go to the address stated in the Contract Data.

The email was in writing. It described the event accurately. It failed the other three tests: it never said it was a Notice, it went by ordinary email rather than the stated route, and it went to a person rather than an address.

One more thing worth knowing early, because it changes who you write to. Under the Red and Yellow Books the Notice goes to the Engineer. Under Silver there is no Engineer, so it goes to the other Party. Same event, same clause number, different envelope.

Records made at the time, or not at all

Sub-clause 20.2 defines contemporary records as records prepared or generated at the same time as the event, or immediately after it. The claiming Party has to keep whatever is necessary to substantiate the claim.

That definition quietly rules out the thing most projects actually do, which is to reconstruct the story once somebody decides to claim. A spreadsheet assembled in month five describing what happened in month two is a reconstruction. It may be honest and it may be accurate. It is not a contemporary record, and the difference is not a technicality.

This is the same argument Cost & Cash Week 14 made about single data capture, arriving from the other direction. There the point was that an event recorded twice by two people produces a reconciliation error. Here the point is that an event recorded late produces nothing at all.

Fourteen days that run in your favour

The procedure is not one-sided, and it is worth knowing the part that helps you.

If the Engineer considers the Notice of Claim was late, he has fourteen days after receiving it to say so. If he doesn't, the Notice is deemed to be a valid Notice. The other Party can still disagree, but the disagreement then gets dealt with inside the determination rather than killing the claim outright.

Then the second clock. Sub-clause 20.2.4 Fully detailed Claim allows eighty-four days from the same starting point for the full statement: the contractual basis, the contemporary records relied on, and the detailed particulars of the money or the time being claimed.

Eighty-four days is a reasonable period to build an argument. Twenty-eight is barely enough to notice you need one. Almost everybody spends their effort on the wrong clock.

Practical insight

Take the register you built in Track 3 and open it next to the contract. Risk Week 15 found five of your thirteen risks had a contractual mechanism behind them. Those five are the ones to work on now.

For each one, write down four things before you write anything else: which sub-clause applies, how many days the notice period is, who the notice goes to, and what happens if you miss it. Four columns. If you can't fill in the fourth, you don't yet know what the clause is worth.

Then find the address. Not the name of the person you deal with — the address for communications in the Contract Data. Most contract administrators on most jobs have never looked it up, and it is the single cheapest thing you will do this month.

Last, agree one rule with your site team and write it on the wall: anything that might become a claim gets a Notice, and the Notice says it is a Notice. Notices are cheap. The one you didn't need cost you an hour. The one you didn't send cost this job its margin.

Key takeaways

✔ The twenty-eight days in sub-clause 20.2.1 run from when you became aware or should have become aware — the driller's log can start the clock before the office does.

✔ Missing the notice does not reduce the entitlement. The other Party is discharged from liability for that event entirely.

✔ Under sub-clause 1.3 a Notice must be in writing, identified as a Notice, delivered the stated way, and sent to the stated address. An accurate email can fail three of those four.

✔ Red and Yellow send the Notice to the Engineer. Silver sends it to the other Party.

✔ Contemporary records are made at the time or immediately after. A reconstruction assembled later is not one, however honest it is.

✔ If the Engineer does not challenge a late Notice within fourteen days, it is deemed valid — the procedure has some give in it, and it runs in your favour.

✔ The rock is worth $48,450 against a net margin of $48,163. One unwritten letter costs more than the whole job earns.

What's coming next

We have been talking as though you know which clause applies. On a real job that is the hard part, because the answer is rarely in one place. The contract is not a document; it is a stack of documents that disagree with each other, in an order somebody decided in advance. Next week we open the stack: how the priority of documents works, why the definitions clause is the most under-read page in the contract, and how to find the provision that governs the situation in front of you without reading two hundred pages to get there.