By Stephen A. Hilger, Esq.
This is part 3 of a 15-part series on the changes to the AIA A201 General Conditions. This part deals with the Notice sections 1.6.1 and 1.6.2.
Notice method provisions were formerly in section 13.3 of the General Conditions. Now, they are located in sections 1.6.1 and 1.6.2. The language in these two clauses is as follows:
This language poses an important trap for the unwary. Section 1.6.1 indicates that you can send notice as required under the contract by electronic transmission, if that method of electronic transmission such as email is allowed in the agreement. That means for every agreement you sign, you need to amend or change the language to include the ability to send a notice via email. If you elect to send notices by some other form of electronic transmission, again, the agreement must be modified. In my judgment, the language should have been changed to include email as a default position as that is certainly the industry standard. On the other hand, since email traffic is so constant and so voluminous, requiring notice by certified mail certainly draws a reader’s attention to the importance of the correspondence. This revision, absent a change to the contract, also prevents the laborious arguments over whether a particular email meets the “notice” requirements as opposed to a mere status of the project, an inquiry, or other ordinary job correspondence.
Section 1.6.2 is an even greater trap for the unwary as it specifically deals with notices of claims. Parties use email for communications. Unless changed, when it comes to claims notices which are required under section 15.1.3, the electronic transmission is no longer sufficient. All of those notices need to be delivered by certified or registered mail, or via courier providing proof of delivery. We will undoubtedly see litigation where notice is provided electronically by email and claims are defeated because they were not proper as having been sent by certified or registered mail or some other FedEx-type delivery.
Your AIA A201 General Conditions should always be modified if you want to rectify these conditions.
