Changes

• Author: Alan Winkler
• Pages: 431-458

Chan ges 431

16.01  The ineviTaBi liT y  of  Changes

Contract terms dealing with changes to the work are just as important as pro-

visions for critical concerns such as payment and time. This may seem sur-

prising, since a changes clause only comes into play when at least one of the

contracting parties contends that there has been a deviation from the work

as originally designed, speci ed, and contemplated. However, the reality is

that, notwithstanding the owner and the architect/engineer having progressed

through every phase of the design process—from concept/program develop-

ment to schematic designs to design development, to the issuance of “ nal”

construction documents—every project of any signi cance (and many minor

projects as well) will require changes to the work and, thus, to the price and

time of performance as well. The most common term for the vehicle effecting

a mutually agreed change is called a change order. It is the rare project indeed

that is built without any change orders. By contrast, it is not unheard of to

have dozens or even a hundred change orders issued on a medium-sized proj-

ect, such as the construction of a school.

16

Changes

ALA N WINKLER

C H A P T E R

431

432 CO N S T RU C T I O N L A W

Changes can come from a variety of sources. The most obvious is a change

in some aspect of the design of the project emanating from the owner’s desire

to have a nished product differing from what is depicted in the drawings

and specications. This is by no means the sole source of changes, however.

Changes can also emanate from errors or omissions in the plans, the necessity

to deviate from the plans due to eld conditions, costs savings suggested by

the contractor, or the issuance of new government regulations.

16.02   The  PurPose  of  a  Changes  Clau se

Changes can take three general forms: extra work, additional work, and deleted

work. Extra work has been dened as “work arising outside of and indepen-

dent of the contract; something not required in its performance.”1 An example

would be the owner’s request to add a room to a building. Additional work has

been dened as work “necessarily required in the performance of the contract,

but the necessity of which arises from unanticipated conditions.”2 An example

would be excavating a site to an increased depth from what was originally

required due to the nature of the soil encountered. Despite these differing de-

nitions, both can qualify under the general heading of “changes.”3

Absent a change clause, a claim for the performance of work outside of

the requirements of a contract would be treated under the principles of quan-

tum meruit (i.e., an implied contract).4 A change clause allows the claim to be

treated as a matter of contractual entitlement, with the right of recovery depen-

dent upon the eligibility of the claim under the denition in the provision and

compliance with its terms.

As discussed later in this chapter, changes can be either express or construc-

tive. In short, an express change arises when the owner directs the contractor

to perform the work in a manner differing from the contract requirements. A

constructive change arises when the contractor performs work in a manner

differing from the contract requirements without an express directive, but in

order to overcome a difculty that would otherwise impede construction of

1. Interstate Contracting Corp. v. City of Dallas, Texas, 407 F.3d 708, 712 (5th Cir. 2005).

2. Wisch & Vaughan Constr. Co. v. Melrose Properties, 21 S.W. 3d 36, 40 (Mo. App. S.D.

2000).

3. Courts use the terms “additional work” and “extra work” interchangeably. See, e.g., Dave

Kolb Grading, Inc. v. Terra Venture Bridgeton Project Joint Venture, 85 F.3d 351 (8th Cir. 1996);

Miller Elevator Co. v. United States, 30 Fed. Cl. 662 (Fed. Cl. 1994). The distinction has also been

questioned. See Buckley Co. v. City of New York, 505 N.Y.S.2d 140, 143 (N.Y. App. Div. 1986).

4. Fox v. Mountain West Elect., Inc., 52 P.2d 848 (Idaho 2002); Joseph Sternberg, Inc. v. Wal-

ber 36th Street Assoc., 594 N.Y.S.2d 144 (N.Y. App. Div. 1993).