The basic requirements for proving a change order are firmly established under Illinois law. To obtain relief for a disputed change order, a contractor must show five things:
- the extra work was outside the scope of the claimant’s original contractual promises;
- the owner or upstream party requested the extra work;
- the owner or upstream party, by word or conduct, agreed to pay for the extra work;
- the contractor did not voluntarily proceed with the extra work; and
- the extras were not made necessary by reason of some default by the contractor.
Many modern construction contracts set out specific standards for what a contractor must do in order to make a successful claim for extra work, including documentation obligations and notice-of-claim deadlines. Especially common is a requirement that a valid change order be in writing and signed by the owner or upstream party prior to the work occurring. However, in practice, schedule pressure often leads to the extra work being performed before written change orders are completed despite contractual provisions to the contrary.
Courts have held that even with unequivocal contract language requiring prior written and signed change orders, contractors may recover payment for extra work performed in reliance on oral directives in certain situations. Generally, circumstances such as the parties’ prior conduct on the project and direction from the owner or architect can impact the outcome, but a court will examine each dispute regarding a contractual prior-written-consent requirement on a case-by-case basis.
The attorneys in Ogletree Deakins’ Construction Law Industry Group will continue to cover developments, news, and legislation pertinent to the construction industry.