Is 28 days notice period mandatory for Claims in Construction Contracts?

Theme: Project Closure; Module: Completion to Termination

Author: Dr. Pradeep Reddy Sarvareddy

Published Date: 02 Jan 2026

Many FIDIC and EPC contracts require issuing a Notice for Claims within 28 days or that the entitlement for the Claims is extinguished. This is known as a “time-bar” clause. But certain statutes like the Indian Contract Act 1872 and the Limitation Act 1963 exist in relation to the “time” for Claims. Removing the “legalese” let us review these concepts with “legal-ease”. Further, understand what you can do to protect your Claims, when the 28 days period begins or what else you can do in these legal confusing situations in relation to Government construction contracts.

Some contracts say:

“If the Contractor fails to give notice to the Department of any Claim within 28 days, the Contractor shall not have any entitlement and the Department shall be discharged from all liability.”

This clause sounds dangerous. But there are many layers to this clause. Many people know the general rules as follows:

If you do not submit a notice for the Claim within 28 days, you will not be able to submit that Claim in Arbitration.
Legally, under Section 28 of the Indian Contract Act, no one can restrict your legal rights. This means that you can always approach Court for your Claim, i.e., instead of Arbitration, now you have to file a Civil Suit in the Court for that Claim. Usually, the Limitation period for such Claims is three years.
So, in conclusion, what you lose is your option of choosing Arbitration but you can still opt for a Civil Suit in a Court. Compared to Arbitration, Court proceedings may, for some cases, appear to be a waste of time, money and effort.

These “rules” as stated above are known to some, but the “exceptions” are not that well known. Let us explore the exceptions also, as noted below.

“Conduct cures delay”. Department by its own conduct may unknowingly make your Claim “valid”. This conduct is also known as “waiver by election”, a doctrine that can save Contractors. This benefit to the Contractor occurs if the Department chooses to act on the Claim after the delay, i.e., the Contractor submitted the Claim after 28 days, but the Department acted upon the Notice. This conduct or action may include several things like the Department sending a reply to the Contractor asking for more documents to support the Claim, comments on the quantum of the Claim, appoints an internal Committee to review such Claims, replies on the merits of the Claim or may even loosely “acknowledge” the Claim. By these actions, the Department has revived the Claims. All the Contractor has to do now is retain the evidence until the Arbitration, which may be 3-years away.
“Reciprocal timelines”. Another hidden principle, though visible in plain sight in the Contract but hardly noticed by many, is the reciprocal timeline for the Department to perform its own obligation. Such an obligation of the Department may include various actions like replying to the Notice, certifying the work, issuing decisions or assessing the Claims in a timely manner as per the Contract clauses. If the Department delays its own obligations, i.e., the reciprocal timelines, the department loses its legal grounds to enforce the Contractors delay. “He who seeks equity must do equity”.
“Doctrine of Discovery”. Did you ever question, when does the clock start for the 28-days period? Don’t assume. Check the Contract. Even otherwise, you cannot send a Notice of something until you “discovered” it, i.e., you came to know about it, even though you were actively involved in the Project. This is the difference between the occurrence of the “event” which you did not know and the “impact” which you came to know. So, the Notice Period of 28 days, starts from the day you discovered the event. Such an event may include some impact on cost or time. I like to watch “Discovery Channel”. Wait, how is that relevant here?
“Department caused the Breach”. It’s simple. If you commit a mistake, you pay. So, if the Department delayed drawings, approvals, payments, or issued contradictory instructions, or caused some situation which obstructed the Contractor from issuing the Notice, then, the Department cannot say that the time period of 28 days is over. The principle is simple: No man can benefit from his own wrong. But what about a woman?
“Don’t underestimate your logic”. Most Contractors talk logically rather than legally. You know what, most times, your logic is correct. Don’t underestimate yourself. The arguments go like the following: “I could not issue a Notice because the Department would not pay me (or) The Department did not accept the Notice (or) I gave the Notice within time, but the Department is saying otherwise”. Save your breath. You could still invoke Arbitration and then submit your arguments there. The Arbitrator will review all the evidence and then decide the “admissibility” of the Claim. Some people confuse the terms “admissibility” and “jurisdiction”. When you approach Court to appoint an Arbitrator, the Court does NOT have the “jurisdiction” to comment on these kinds of Claims. In the recent years, Courts have held that these aspects of “admissibility” are within the “jurisdiction” of the Arbitrator. The Court may most likely appoint an Arbitrator and this may be your first Win.
“Technicalities vs Merits”. This means that nowadays, Courts and Arbitrators are focusing more on the merits of the Claims, i.e., is the Claim justified and is the quantification correct, based on the evidence. Minor procedural lapses may be dismissed for the benefit of justice. In the end, Justice will prevail.
“Their Silence is your gold”. If the Department stays silent even after receiving your Notice belatedly, but continues as usual, may be, just a little may be, the silence may be construed as waiver or as “constructive acceptance”. So, sometimes, silence is golden, may be for your benefit.
Small document is still a “document”. Never underestimate the meaning of “document”. Did you know that the Indian Contract Act is from the Year 1872 and the meaning of “document” provided in the Act applies even to “emails” that were invented more than 100 years after the Act? So, document could mean anything like site records, daily logbooks, meeting minutes, letters, email, etc., in which the Department was involved. So maybe you did give a Notice within 28 days which is noted in your “document”. Keep your eyes wide open.

These are powerful weapons. Used correctly, they could save you a lot of money and time. There are rules and there are exceptions. So don’t believe everything someone says. Verify for yourself. Always issue Notices, hopefully within time. Afterall, time and tide wait for none.

Maybe you are looking at the wrong watch.