Today, we welcome back friend of the blog Christopher G. Hill.
Chris is a LEED AP, a Virginia Supreme Court certified mediator, construction lawyer and owner of the Richmond, VA firm, The Law Office of Christopher G. Hill, PC. Chris authors the Construction Law Musings blog where he discusses legal and policy issues relevant to construction professionals.
His practice concentrates on mechanic’s liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals. [His blog, by the way, was an active influence when I was just getting started on my own blogging endeavor.] Take it away Chris………….
I am always happy to guest post here at Melissa’s blog (despite the fact that she went to a school with the wrong color blue) and she had a great idea for a topic (namely that in the title of this post) so I decided to run with it. So, without further ado. . .
As construction professionals we’ve all been there. Something happens on a job site that requires immediate attention and possibly a changed sequence of work or possibly a change to a subcontractor’s scope. It could be a buried power line that Miss Utility failed to mark properly or an owner that wants a different HVAC configuration at the last minute. It could also simply be that it rained too much, and work had to slow down.
The above examples are instances of items that are beyond the control of the general contractor or the subcontractors and are the type that require shifts in work schedules and changes in scope that must be dealt with on the fly and require quick decisions and immediate action if the project is to meet any time of completion reasonably close to that which is listed in the contract documents. It can often seem that there is no time to meet the written change order provisions of any well drafted construction contract.
Of course, failing to get your change orders in writing could lead to a situation that only a construction attorney could love: ambiguity, claims and possible litigation. So, what do you do in the “heat of battle” when the Owner or General Contractor is pushing for the change and telling you to get it done, we’ll do the paperwork later? While anything aside from an agreed change order with the signatures of all parties is not ideal, when the circumstances keep this from happening, the following steps can keep you from losing a potential claim:
Use your smartphone.
We all carry these computers in our pockets that also happen to have an app that works like a phone. — USE THEM. When confronted with this type of situation, send an email (I personally hate texts because they’re hard to use later) with the understanding of the work to be done and either a price change or a statement that a price will be coming later in the day. Be sure to end the email with something to the effect of “If this is not your understanding, please let me know” so that when you don’t get a reply before starting the new work, you are as covered as possible.
Follow up on Number 1
If you must use Number 1 above, be sure to fill out a claim/proposed change order the same day as the email with the proposed scope change and price. Most construction contracts give you at most 3 days in which to file your claim or PCO if there is not one in place. Immediate follow up will in most cases meet these deadlines.
Review your contract and any Prime Contract.
As stated above, there are deadlines in these documents. Often there are additional and incorporated deadlines in the prime contract that may limit your follow up time even further.
Whatever you do, do not “punt” and fall into the trap of feeling as if you can settle up at the end of the job. Just because the relationship is friendly (or at least reasonably businesslike) at the time of the “crisis” does not mean that when the job gets to the end any paperwork omission won’t be used to avoid payment.
Of course, the ideal would be to avoid beginning the changed work until the change orders have been signed, but this is not always possible.
Great post Chris!
Remember, without documenting project agreements, you may end up forfeiting your claims later on. Create a good document system and use it. During litigation, documents could make or break your case.
Comments, thoughts, questions? Drop a line in the comment section below.