Construction contracts typically contain a requirement that extras or changes to the original scope of the contract be authorized in writing, generally before the work is done. In those instances, a written change order is required before the contractor is entitled to additional compensation for extra work. However, in an effort to deliver projects on time, contractors often perform extra work after receiving verbal assurances that a written change order is forthcoming. This, unfortunately, often leads to claims and litigation.
In general, clauses requiring written change orders are enforceable. However, the requirement of a written change order can be waived, particularly for private construction projects. The waiver can result from oral statements or promises made to induce the contractor to perform the extra work or from actions or conduct relied upon by the contractor.
In addition, a construction contract can be modified by the subsequent oral agreement or conduct of the parties, even though the written contract purports to prohibit such modification. For example, a waiver may occur if an owner is aware of the extra work being performed and does not object, or if the owner has previously accepted change orders not signed in accordance with the contract.
The best practice for all construction parties is to have a written change order issued in accordance with the construction contract before any changes in the work begin, even though exceptions to the requirement of a written change order may apply. Construction participants should consult with their counsel regarding the best practices to handle changes to work on projects.