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)
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Jonathan J. Straw
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