Change Orders and Scope Disputes
Two sentences cause most of these disputes. The owner says it was always part of the job. The contractor says it was extra.
Scope disputes are the most common construction disagreement and among the most avoidable. They arise because the contract described the work in general terms, because the drawings and the specifications say different things, or because a change was directed on site and priced later, if at all.
They are also expensive to resolve after the fact, because the evidence is a mixture of documents, messages, invoices and recollection, and both parties genuinely believe their own account.
Where scope disputes come from
- A scope of work written broadly, with no list of exclusions
- Conflicts between the drawings, the specifications and the written proposal, with no priority clause
- Allowances set too low, so overages appear as extras the owner never expected
- Verbal direction on site, performed immediately and billed weeks later
- Conditions discovered behind walls or underground with no differing site conditions clause
- Design changes that the owner sees as clarification and the contractor sees as additional work
- Work required by an inspector that neither party had priced
- A change performed on the promise that the parties would sort out the price afterwards
Once the work is complete, the party who has to pay has no reason to agree a favorable number and every reason to argue it was included all along. Price it first, in writing, even briefly.
When the clause was not followed
Most contracts require changes in writing and signed before performance. When the parties then proceed verbally for months, the question becomes whether that clause still governs.
Courts look at the conduct of the parties. Where an owner directed changes, watched them being performed, and paid earlier verbal changes without objection, a contractor generally has a real argument that the written requirement was waived by a course of dealing. Where the contractor simply performed work nobody asked for, the clause is likely to be applied as written.
Related doctrines can also assist, including claims for the value of work performed and accepted where no enforceable agreement covers it. These are fallback positions rather than substitutes for doing it properly, and they recover less.
How these matters run
- Define the original scopeThe contract, proposal, drawings and specifications, and any priority clause resolving conflicts between them.
- Isolate the disputed itemsItem by item rather than as a global figure. Some usually resolve immediately once separated from the rest.
- Assemble the direction recordMessages, emails, site photographs, daily reports and payment history for earlier changes. This is where waiver arguments are proven.
- Negotiate or fileMost resolve once each item is documented and separated. Where they do not, the claim proceeds with the lien clock protected.
Questions about scope and changes
I did the extra work on a verbal go ahead. Can I still get paid?
Often yes, though it is harder than it needed to be. If the owner directed the work, knew it was proceeding and paid for earlier verbal changes, there is a strong argument the written requirement was waived. Gather every message and photograph from the period, because that record is the case.
My contractor is calling something an extra that I assumed was included.
Start with the contract documents and any exclusions list. If the scope is silent and the work was necessary to deliver what was described, the contractor's position is weaker. If it appears in the drawings but was excluded in the proposal, the priority clause, if there is one, decides it.
The allowance was nowhere near enough.
Allowances are budget placeholders, not price guarantees, and overages are ordinarily payable by the owner. The fair questions are whether the allowance was set unrealistically low to make the bid attractive, and whether the overage was approved before the money was spent.
How do I stop this happening on the next project?
A scope with an explicit exclusions list, a priority clause among the documents, realistic allowances, a differing site conditions clause, and a simple one page change order form used every time. That combination removes most of the disputes on this page.
Price the change before the work, not after.
[PHONE]Matters with a lien deadline, a filing deadline or a hearing already on the calendar are handled by phone.