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Counsel for the Ohio School Facilities Commission (“OSFC”) and its co-owner School Districts are increasingly relying upon technicalities in the claims process to avoid dealing with claims on their merits.

In the past, contractors who gave timely notice of claims (i.e. within 10 days of the event) could document their damages once the loss could be quantified and before project close-out.

Now, the OSFC contract documents suggest that a claim must be certified within thirty (30) days after the initial notice (i.e. of delay). This puts a contractor on the horns of a dilemma. A contractor who certifies a claim within thirty (30) days, when the impact is ongoing, cannot predict with certainty the amount of his loss and may be at risk of certifying a false claim (because he has no crystal ball into the future). And a contractor who waits until his loss is accurately quantified (i.e. at the end of the job) is at risk that one will argue that his claim is untimely and waived.

The bottom line is that contractors need to provide timely notice of impacts and should endeavor to strictly comply with the deadlines for documentation of claims under the contract whenever practicable. Legal counsel may be helpful in assisting contractors struggling to deal with these demanding and often impractical requirements.