Contractors in Washington State continue to look for judicial relief from the strict compliance with contractual notice requirements and still come up empty. The most recent example of forfeiture of payment is explained in C.A. Carey Corporation v. City of Snoqualmie, a case recently released for publication by the Washington Court of Appeals, Division I. The Washington Department of Transportation (WSDOT) includes strict notice of claim requirements in its Standard Specifications for Road, Bridge and Municipal Construction. Citing past precedent, the Court reiterated that contractors are required to strictly comply with the mandatory protest and claim procedures even when the owner has actual notice of the protest or claim. In short, failure to properly notify the owner of a claim it is already aware of is no excuse not to comply, even if it results in forfeiture of right to payment for labor and materials that the contractor contributed to the project. You snooze, you lose.

Given the harsh result, the contractor tried to convince the Court that "substantial compliance" was sufficient to overcome mandatory notice, protest, and claim provisions. Absent waiver by WSDOT, the Court held that contractors must follow the specific requirements of the notice, protest, and claim provisions in order to preserve their contractual claims for litigation. This has been the rule ever since the principle was first announced that procedural contract requirements must be enforced absent either a waiver by the benefiting party or an agreement between the parties to modify the contract. Mike M. Johnson, Inc. v. County of Spokane.

Lesson learned. The best practice is for all contractors, subcontractors, materialmen, suppliers or vendors that come under chain of contract with these notice of claim requirements to ensure that their team—from the project manager to the superintendent—knows how to provide the required notices and follow the claim procedures of the applicable specifications. Until there is a change in the law, the failure to strictly comply with contract procedures in Washington State can and will result in the forfeiture of legitimate construction claims, regardless of how harsh and meritorious the right to payment.