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Changed Work Conditions

Wednesday, April 02, 2003 01:02 pm

Changed Work Conditions

The classic constructive change in a construction contract is an act by the project owner that alters the scope or definition of the work. But there is another type of constructive change that does not involve an alteration of the physical project. It is a change not in the definition of the work itself, but in the manner or conditions in which the work must be performed.

Changed work conditions fall into four broad categories: (1) general conditions; (2) administration and quality control; (3) property adjacent to the job site; and (4) method of performance.

General Conditions

Construction contracts frequently represent, or imply, that certain services necessary to support the prosecution of the work will be available at the job site. If those services are not available, the problem can increase the cost of performance and lead to a claim for a constructive change.

In one case, a contract drawing depicted an existing gas line leading to the site. The contractor could not test or operate the hot water heating system it was installing without gas service. But when the contractor attempted to connect to the gas line, it discovered that the line had yet to be placed in service. The contractor recovered its increased costs. Appeal of Mit-Con, Inc., ASBCA No. 42916 (October 31, 1991); CCM January 1992, p. 5.

One contract stated that the contractor was responsible for temporary power at the site, but gave no indication where the tie-in was located. The contractor assumed it was on or adjacent to the job site. In fact, the nearest tie-in was more than 4,000 feet from the site. The contractor's expectation had been reasonable, so the contractor recovered the cost of bringing power to the site. Joseph E. Bennett Co., Inc. v. Commonwealth of Massachusetts, 486 N.E.2d 1145 (Mass.App. 1985); CCM April 1986, p. 4.

In another case, the contract expressly stated that power was available at the site. And it was. But the project owner refused to allow the contractor to connect its welding equipment out of concern that the electrical system could not handle it. The contractor recovered the cost of an alternative source of power. Appeal of Engineering Technology Consultants, ASBCA No. 44913 (October 30, 1992); CCM January 1993, p. 4.

A contract for renovation of an existing building said, "Premises are supplied with water and electrical services which may be used in this work."The contractor used the existing electrical service, but the project owner took a set-off against contract payments to cover the power costs. The contractor recovered the withheld funds. The contract, and prior practice, had led the contractor to reasonably believe it would incur no costs for electricity. P. J. Dick Incorporated v. General Services Administration, GSBCA No. 12151 (September 26, 1995); CCM December 1995, p. 4.

The disposal of debris can also affect work conditions. A highway construction contract designated a waste disposal area adjacent to the work site. The project owner later ordered the contractor to utilize a disposal area some distance from the site. The contractor recovered the cost of trucking debris to th [...]

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