By Benjamin S. Lowenthal, Hendrick, Phillips, Salzman & Siegel, P.C

Construction contracting is a high-risk business. For subcontractors, work is performed and the cost of such performance is essentially incurred on an “extended credit” basis – subcontractors do the work first and then get paid (or hope to get paid). A Subcontractor’s economic viability depends on a steady, predictable cash flow for work already performed in order to constantly replenish necessary working capital. Importantly, the terms of such compensation – including payment for change order work – are defined in the contractual agreements between the parties. In most cases, the original contractual agreement is formed as a result of a bidding or proposal process. The subcontractor estimates the cost and time necessary to perform the work as then depicted in the original scope of work and design documents. That estimate then forms the basis of the bid and the ultimate contract amount to be paid to the subcontractor for the performance of the work. 

However, the scope of work that a subcontractor bids upon and contracts for is rarely the exact scope of work that is actually performed. As every subcontractor knows, construction projects are generally not actually built exactly as originally designed and as specified in the plans and specifications. Through the life of a construction project, the original scope of work is often changed, altered, delayed, and disrupted by a laundry list of causes and factors beyond the control of the subcontractor. And every one of these factors potentially impacts the actual cost of performance and the subcontractor’s ultimate liability for any project. At worst, if not properly addressed in the construction contract and properly handled by the parties, changes can blow up into long, costly disputes. As one Federal District Court Judge put it: “informal mutual good faith departures from the original contract and specifications” can blow up into “diabolical dastardly deeds in the harsh light of the letter of document and the law” if not properly handled by the change order provisions of the contract. See J. A. Jones Const. Co. v. Greenbriar Shopping Ctr., 332 F. Supp. 1336, 1343–44 (N.D. Ga. 1971), aff’d sub nom. J.A. Jones Constr. Co. v. Greenbriar Shopping Ctr., 461 F.2d 1269 (5th Cir. 1972) (also stating that no complex construction project “could possibly be completed in accordance with the literal scheme envisioned” by the parties). 

So, what steps can subcontractors take to protect rights to payment when there is a requested change to the scope of work? 

Review the Contract

First, for projects not yet under contract, subcontractors should review contract sections that describe the rights, remedies, and procedures relating to changes and claims and determine how the contractor allocates responsibilities and risks. A subcontractor cannot assume that risks are reasonably balanced between the contractor and subcontractor. A review of the contract to determine how risk and responsibility has been assigned is essential to avoid unknown liability. Some items to look out for include limits on “mark-ups” for overhead and profit for change order work that are unreasonable and burdensome/immediate notice requirements from the event (and not Subcontractor’s knowledge of the event) giving rise to the necessary change order work. At the very least, every subcontractor must review all contracts for language waiving a subcontractor’s right to payment for change order work. The scope of work will likely change. Subcontractors should make sure, at the very least, that they will be entitled to payment for authorized change work.

All projects and contracts are different and there is no one size fits all revision or insert that will fully protect a subcontractor’s right to payment for change order work. However, the following language is a suggested insert that can be included in a contract to help protect a subcontractor from nonpayment due to change order work:

If Subcontractor is requested by Contractor to perform extra or changed work that was not part of Subcontractor’s original scope of work, Contractor will provide reasonable compensation to Subcontractor for said work. Contractor shall not give orders to Subcontractor for work that is required to be performed at that time and then refuse to make payment on the grounds that a Change Order was not executed at the time the work was performed or the Contractor’s representative was not authorized to order the change. Contractor and Subcontractor recognize that in order for construction projects to proceed in a timely and efficient manner, changes in the original specifications frequently are made prior to execution of formal change order documents. The parties agree to work in good faith with each other so that Subcontractor does not proceed with changed work without authorization and Subcontractor receives fair compensation for authorized, change work. 

Know the Notice Provisions

Second, for projects already under contract, all subcontractors should know what kind of notice provisions are required in order to preserve claims for change order work. Know when and to whom the notice needs to be given. Moreover, do not rely on verbal promises that a written and approved change order will be issued before starting the change order work. Subcontractors should demand that contractors issue a written change order pursuant to the terms of the contract before starting any change order work. Otherwise, the subcontractor will truly be taking on the risk of nonpayment. 

Construction contracting, especially for subcontractors, is a high-risk business. Prime contractors generally attempt to put all the risk and potential liability on subcontractors. Subcontractors should not accept contracts “as-is” and should always push back on unfavorable, burdensome terms. This is especially the case for change order work. If a subcontractor is going to perform quality work, it should be paid for such work. Don’t let a prime contractor dictate otherwise. 

About the Author

Benjamin S. Lowenthal is an associate with Atlanta-based construction law firm Hendrick, Phillips, Salzman & Siegel and is a licensed lawyer in the states of Georgia and New York. Ben’s practice includes construction contract drafting and breach of contract litigation. Ben received his undergraduate B.S. from the University of Georgia and his J.D. and LL.M. in Environmental Law from the Elisabeth Haub School of Law at Pace University. For more information, contact the author at (404) 522-1410, bsl@hpsslaw.com or visit www.hpsslaw.com.