5.3.1.2.1 Contract Right and Elements of Proof

• Jurisdiction: Arizona

Change orders are normal in construction jobs. Most construction contracts permit an owner, without breaching the contract, to require that the contractor perform additional or extra work. For example, a typical standard change order clause is found in AIA Document A201, Article 7 (2007), with subsections 7.2.1, 7.1.2, and 7.1.3 illustrating the basic outlines of a change order.^[20]

7.2.1 A Change Order is a written instrument prepared by the Architect and signed by the Owner, Contractor and Architect, stating their agreement upon all of the following:

.1 a change in the Work;

.2 the amount of the adjustment, if any, in the Contract Sum; and

.3 the extent of the adjustment, if any, in the Contract Time.

7.1.2 A Change Order shall be based upon agreement among the Owner, Contractor and Architect; a Construction Change Directive requires agreement by the Owner and Architect and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by the Architect alone.

7.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction Change Directive or order for a minor change in the Work.

Moreover, virtually all construction contracts contain further provisions requiring the contractor to perform such extra work pending the resolution of any dispute over what the right price might be for the work or whether it is, in fact, “extra” work. In essence, the contractor is generally obligated to promptly proceed with the extra work requested by the owner, although the compensation for this work has not been determined. These clauses are utilized in the construction industry to...