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Waiving The Change Order Requirement

Saturday, July 03, 2004 01:34 pm

Waiving The Change Order Requirement

Virtually every construction contract includes a provision requiring that any changed or additional work be authorized in writing. As with any contract requirement, however, a change order clause can be waived by the party entitled to enforcement. Waiver occurs when a party engages in conduct inconsistent with the intent to enforce the requirement.

Occasionally, waiver results from an express directive to ignore the provision. In one case, a prime contractor told a subcontractor to exclude extra work from payment requisitions because it was causing problems for the project owner with the construction lender. The prime assured the sub, however, that there would be payment for the extra work. The prime waived the right to enforce the written change order clause in the subcontract. T. D. Industries, Inc. v. The Lakes Project Investors, 883 S.W.2d 44 (Mo.App. 1994); CCM December 1994, p. 2.

Similarly, when a subcontractor told a lower-tier subcontractor, "Don't worry about it, you'll be paid for it,"the sub waived the right to enforce the written change order requirement. Menard & Company Masonry Building Contractors v. Marshall Building Systems, Inc., 539 A.2d 523 (R.I. 1988); CCM July 1988, p. 8. Explicit directives to ignore written change order requirements are unusual. More common is a pattern of conduct inconsistent with the intent to enforce the provision. Eager to expedite the work, the parties ignore the clause. The issue doesn't arise until there is a payment dispute. [...]

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