Can the Contract’s Change Order Requirements be Waived? If so, can this Support the Basis of a Payment Bond Claim?

You are owed money for change order work. But, and this is a big but, you did not perform the change order work per your contract. The contract required you to get a signed change order in advance of performing such work. Of course, you pursue the costs associated with the change order work only to receive the counter that the costs are invalid because you did not comply with the terms of your contract. This is a fairly common counter, right?

Notwithstanding the requirements of the contract, you may be able to support a waiver argument—the party looking to enforce the requirements of the contract waived the right to do so. Waiver is the voluntary relinquishment of a known right support by competent evidence. If you can support such a waiver argument then you may be able to circumvent the requirements of the contract to claim your additional costs for performing the work. Check out this article for an example of a sub-subcontractor pursuing and recovering change order work from a Miller Act payment bond surety and prime contractor (on a federal project) even though the sub-subcontractor performed the change order work without complying with the subcontract. The sub-subcontractor was able to show that the subcontractor that hired it to perform a scope of work waived the requirements of the change order clause in the contract through its conduct and actions.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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