By Alexander Barthet

It is rare that a construction contract remains unchanged from start to finish. Change orders and extras are often implemented after work starts.

Change or Extra

First of all, be aware that there is a legal distinction between a change and an extra.  A change is a modification to an item that is already contemplated under the contract.  An extra, on the other hand, is material or work in addition to that which was addressed under the original contract.  Before entering into a construction contract figure out if the contract addresses either or both and if so, whether they are treated the same way.

Get Change Orders and Extras In Writing

Whether extras or changes, they need to be in writing to be enforceable. That said, this requirement may be waived based on the parties’ conduct or a verbal understanding. Just saying something has to be in writing will not necessarily make it so. But as in everything else related to construction, having everything in writing is absolutely the way to go.

Identify in writing the specific persons who are authorized to make changes or extras and to bind a contracting party. When drafting a change order or extras, it is sensible to include the date, an adequate description of the work to be performed, the price (or, at a minimum, a method for determining the price), a description of how long the work is estimated to take and any exceptions or objections as to what is being resolved by the change order or extra.

Because it is almost guaranteed that a change order or extra will become part of your construction project be prepared. Get them in writing.

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