What To Do When You Can’t Get Change Orders in Writing
Change orders can be tough to track. Nearly every construction project has change orders and with the number of parties on a given project and the number of projects any one party is involved in, it is no surprise that change orders are often overlooked or simply given a verbal approval to proceed.
But like all documentation, it can be vital in supporting your claim. So, what can you do when a formal change order isn’t issued?
What You Can Do When You Can’t Get a Change Order in Writing
A change order, which is a change to the original contract, should be formally issued and approved. Should. There are a lot of things that we should do: make the bed, exercise daily, avoid sugary drinks, etc. Unfortunately, we don’t always do what we should.
It’s so easy to simply send additional materials and invoice your customer when he calls in search of more scaffolding. It’s a pain to go through the proper channels to get a formal document, especially when your customer needs materials now, not a week or two from now when the formal request is issued.
If your contract requires change orders to be in writing, and a request for formal documentation falls on deaf ears, don’t just assume it’ll be OK, find a way to document, document, document. Those are the words of Todd Heffner of Smith Currie in his article Can’t Get a Written Change Order? Document, Document, Document.
Heffner mentions that if a dispute arises over an undocumented change order, “The general trend is for courts to allow a contractor to recover for the extra work that was performed.” But why risk it? If you can’t get a formal document, Heffner recommends utilizing email as a way of informal documentation.
“For example, the contractor can send an email to whoever is directing the work requesting clarification of what is to be done. The email chain will provide written evidence that the contractor did not proceed as a volunteer or consider the changed work to be in the original scope.”
What happens if the email recipient won’t acknowledge the email or refuses to respond? Is it still worth documenting? Yes, Heffner notes you can still send an email regarding the change, but follow it up with a letter sent via certified mail:
“This can be done initially by sending a long email documenting exactly what was directed and why it constitutes a change to the work. Any such email should be followed by a letter sent via certified mail. Both email and letter should give the owner, architect, or engineer a limited time to disagree, e.g., ‘We will proceed with this work in x days unless you direct otherwise.’”
The Pencil Remembers What the Mind Forgets
I’ve probably spouted this proverb before, with many thanks to my 7th grade history teacher, but it is worth repeating. “The pencil remembers what the mind forgets” – in other words, write down events and occurrences.
Document change requests, keep track of waivers, carefully itemize statements, match bills of lading/proofs of delivery to outstanding invoices. The paper trail can be annoying, with random bits of extraneous information slid in an offhanded email or quick text, but it’s critical in supporting any potential claim you may have.