Construction contracts usually require prompt notice of an occurrence giving rise to a claim. But, the actual adjudication of the claim – the determination of owner responsibility and the recovery of costs – is another matter. The contract may mandate an attenuated process: nonbinding mediation and other administrative procedures prior to any binding arbitration or litigation of the matter.

A recent case out of Florida illustrates this problem. The contract said no court action or arbitration proceeding on any claim could be initiated until final acceptance of the work. Unfortunately for the contractor, this was a four-year highway project. The contractor jumped the gun and litigated – successfully – a claim that arose in the opening months of the project. The courts then denied the contractor the opportunity to litigate other claims that arose later in the project. The contractor was required to consolidate all its claims in a single action. There was no “second bite” at the apple.

Other cases this week involved the acknowledgment of an amendment to a bid solicitation and the overstatement of a mechanic’s lien amount. Failure to acknowledge an amendment stipulating an interior finish schedule could be waived as a minor informality. The finish schedule was not a material element of the contract. And, the overstatement of the lien amount did not stem from fraud or intentional wrongdoing.