Here’s the situation – You’ve done the extra work because you were verbally asked and you strive to do a good job. But now, the Owner or Prime won’t pay because your Contract or Subcontract precludes payment without a written change order.
Even if your agreement can only be modified by a writing, you may still have a good argument to be paid for extra work.
Consider your prior dealings with the Owner or Prime on the current project and on prior projects. Have you ever been paid for extra work without a written change order? If yes, then you could still get paid even though the contract requires a written change order or other written agreement. The more frequently this happens between you and the other party, the better your chances of payment.
The Virginia Supreme Court has held a subcontract clause requiring a written agreement for changes did not pertain to work outside the scope of the original subcontract. Instead, the Subcontractor’s invoices were sufficient written documentation to show subsequent, separate agreements for the extra work. The Subcontractor’s daily reports supported that the Subcontractor actually performed the extra work. Also important is that the subcontract did not include a provision that excluded all other negotiations from the Subcontract (i.e., a merger or integration clause).
Medlin & Son Construction Co. v. The Matthews Group, Inc., No. 160050 (Va. Nov. 23, 2016)
Roads & Bridges | Authority Defined
AUTHORITY DEFINED | The Law of Agency is Important to Understand
For any project, this Russian proverb is helpful: Doveryay, no proveryay – […]
Jurisdiction is Power
Not bad power, but the ability of a decision-maker (e.g., court) to decide which side is right (or which is more correct). […]
Roads & Bridges | Defining Labor
DEFINING LABOR | How the Miller Act continues to shape the industry
In the late 1700s, risks of nonpayment caused a shortage of […]
Roads & Bridges | Mediation Melee
MEDIATION MELEE| An arbitration case can be costly
Arbitration can be a bridge over troubled waters. In this crossing, the parties argued over […]
Roads & Bridges | Written Notice
WRITTEN NOTICE | Beware that strict compliance of the contract might be required.
When an owner replaced a contractor for significant safety violations, […]
Roads & Bridges | Mommie Dearest
MOMMY DEAREST | The story of an ESA without a MOM
Nobody enters this world, or a contract, without a mother: There can […]
IIJA | Does Closing a “Giant Loophole” Cost Contractors?
A recent article published by Roads and Bridges magazine reports that the Office of Management and Budget is working to broaden the scope […]
Roads & Bridges | Buy American Plan Gets an Update
BUY AMERICAN PLAN GETS AN UPDATE
The Office of Management and Budget is developing standards to replace the current Buy […]
Roads & Bridges
Where Does the Buck Stop?
WHERE DOES THE BUCK STOP? | A shallow concrete pour leads to an interesting lawsuit
On the desk of President Harry S. Truman […]
Jonathan J. Straw
Blog Author
Contact Jonathan
Partner | KraftsonCaudle.com
Download Jon’s Bio
