Written change orders are a big deal.  Almost all construction contracts (at least the well drafted ones) require written contracts.  Written change orders are even important enough that Virginia law requires these provisions in residential construction contracts.

Why are they so important? Because they are a “mini-contract” of sorts.  They set the expectations, price, time, and work to be performed; work that was not included in the original price or scope for the project.  Without this in writing, there will be no record of what the parties agreed to do.  Does this sound familiar?  Sound like its own contract? It should.

Further, most, if not all, of these provisions preclude any payment for “extra work” without a written change order or change directive.  Doing any work without such a writing can be fatal should you have to call your friendly local construction attorney to help recover any money that you may think is owed.  A large number of the claims that come across my desk are related to disputes relating to change orders.  These disputs can range from was it truly extra work, to how much was agreed to, to whether that work was performed correctly.  However, in the Commonwealth of Virginia, all of these arguments may be short circuited by the simple omission of a writing memorialzing the claim or change.

You may ask, what about the changes “in the breach?”  Those changes that are of the type such as, for instance, ground water that was hidden and unforseen begins to flood the foundation?  The homeowner that requests that the carpenter simply move a cabinet and that it needs be done now or the appliances could be misplaced?  These are the changes that you may think you could leave until later.  This do the work now, paper it (sometimes weeks) later workflow can and often will get you into trouble.

So, what’s the (somewhat imperfect) solution? A SMARTPHONE.  Should a change be required like those examples above, be sure to send an email to the Owner, GC, or higher tier subcontractor that is requesting the work be done now with the general scope, the price (if you can), and end it with something like “if this is incorrect, please respond with any changes.”  This conclusion puts the onus on the one requesting the change to respond or be deemed to agree with the content of the email and avoids the confusion created by a non-response.  Then, as soon as you are back to the trailer or office, put together the formal change order with all the “bells and whistles.”  This process at least documents in as close to real time the status of the change while buying some time for the paperwork.

Remember, your lawyer can’t help you very well without the paperwork.

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