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 | All According to Plan
ALL ACCORDING TO PLAN | Exact Measurements Go a Long Way
In December 2013, a contractor agreed to replace four bridges for the […]
Roads & Bridges | Connecting the Dots
CONNECTING THE DOTS | Showing Causation in Contracting Cases is Critical
In this asphalt case, the prime contractor agreed to perform a $13 […]
Roads & Bridges | Liquidated Damages
LIQUIDATED DAMAGES | Penalties and What is Unenforceable
Liquidated damages typically flow from delays, but they are not always solidly enforced.
In June 2017, […]
Roads& Bridges | Warranty Provisions
WARRANTY PROVISIONS | Contracts must be interpreted thoroughly to avoid absurd results
You are responsible for things within your control. Be careful if […]
Roads& Bridges | The Agreed Price
THE AGREED PRICE | This case stands as a warning about pay-if-paid clause
History cannot be rewritten and a bad, but legal, […]
Roads& Bridges | Confusing Waters
CONFUSING WATERS | A Supreme Court ruling leaves room for ambiguity
What happens when there may be a “significant nexus” between “adjacent” and/or […]
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 […]
Jonathan J. Straw
Blog Author
Contact Jonathan
Partner | KraftsonCaudle.com
Download Jon’s Bio