Managing Construction Projects in Nebraska: Changes and Disputes

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September 27, 2018
Author: Joel Heusinger
Organization: Woods & Aitken LLP

Changes and Disputes
Certainty of change is a constant in the construction process. Rarely does a construction project progress from start to finish without changes to the work. A “change” is defined as an alteration to an existing contract requirement concerning work that is already required to be done. Changes on a construction project typically affect both the cost and time of the project.

Every construction contract should clearly describe the procedures for processing changes in the work. Such provisions often include the procedure by which such changes are to be effectuated.196 The parties should understand clearly what must be done before the contract can effectively be changed. Where a contractor seeks payment for a change without satisfying the conditions prescribed in the changes clause, the owner may attempt to invoke the procedure in the contract documents as a defense to the alleged claim for a change.

1. Obligation of Project Participants
In order to reduce disputes, the parties must have a common understanding of each of the participants’ obligations under the contract. Specifically, the written contract should clearly outline (1) the scope of work, (2) the contract price, (3) payment procedures, (4) project schedule, (5) procedures for making changes to the work, (6) who bears the risk of differing site conditions, and any agreed to (7) indemnification provisions and (8) insurance provisions.

The general rule in Nebraska is that mere inconvenience or unforeseen costs incurred due to unforeseen conditions will not excuse a contractor’s obligation to perform.197 However, there are circumstances where a party is relieved of its obligation to fulfill its contract. Nebraska has adopted the Restatement (Second) of Contracts §§261 and 265 with regard to the defenses of impossibility and commercial impracticability.198

Section 261 of the Restatement (Second) of Contracts provides:
Where, after a contract is made, a party’s performance is made
impracticable without his fault by the occurrence of an event the nonoccurrence
of which was a basic assumption on which the contract was
made, his duty to render that performance is discharged, unless the
language or the circumstances indicate the contrary.
Section 265 of the Restatement provides:
Where, after a contract is made, a party’s principal purpose is substantially
frustrated without his fault by the occurrence of an event the nonoccurrence
of which was a basic assumption on which the contract was
made, his remaining duties to render performance are discharged, unless
the language or the circumstances indicate the contrary.

2. Common Types of Changes
Several modern standard form construction contracts include provisions for changes.199 By far the most popular of these forms is the American Institute of Architects (“AIA”) Document A201 – 1997, General Conditions of the Contract for Construction (“A201”). Under subparagraph 7.1.1 of the A201, non-minor changes in the work may be accomplished after execution of the contract by either “Change Order” or “Change Directive.”200 A “Change Order” under A201 is a bilateral modification between all parties (owner, architect and contractor) confirming the agreed upon adjustment of the contract price and time as compensation for the change. By contrast, a “Change Directive” allows the owner to unilaterally direct the contractor to proceed with changed work.201

Aside from the popular A201, the Federal Acquisition Regulations (“FAR”) mandate that all federal fixed price construction contracts exceeding $100,000 must include a changes clause.202 Though it has somewhat different terminology, the federal change order approach is similar to that of Article 7 of the AIA A201. 203

The changes clause contained in most standard form construction contracts is absolutely vital to the efficiency of modern day construction projects. In this context, one primary purpose of the changes clause is to jettison the bilateral common-law contract modification rules of “offer” and “acceptance.”204 Without the flexibility of a clause permitting unilateral changes in the work beyond the initial scope of work, changes could only be made through bilateral negotiation and agreement.205 As noted in a leading construction law treatise, this process is “ill-suited to the exigencies of modern construction because of its potential to disrupt the construction process by sanctioning delay . . . until agreement is reached, and thereby giving the contractor extraordinary bargaining leverage to ‘hold the project hostage’ to its demands for more time and money.”206 Today, changes clauses in most standard form construction contracts grant the owner the right to make unilateral changes in the work, while allowing the contractor to recover an equitable adjustment in cost or time for performing the changed work.207 All “changes” clauses in standard form construction contracts authorize changes within the scope of work of the contract.208 The scope of work provision in a construction contract defines what the contractor is supposed to do for an agreed-upon compensation. The scope of work establishes a “baseline,” and any work required by the owner beyond that baseline will be considered extra, additional, or changed work that should entitle the contractor to additional compensation and/or an extension of time in which to complete the project.

3. Change Orders
Most standard form construction contracts provide that a change may only be made by written order.209 The necessity for contractors and subcontractors to obtain a written order before commencing changed or extra work cannot be overstated. Contract stipulations requiring written orders for changes are generally considered valid and enforceable by the courts because of the necessary protection they provide to the owner.210 Therefore, a contractor who fails to obtain a written order prior to performing extra work risks not getting paid for such work.211

Problems frequently arise when an owner orally requests extra work and orally promises to pay for such work, but later refuses to pay because no written change order was given. In this situation, courts are split but generally hold that the contractor can recover despite the existence of a clause requiring all changes be in writing.212 Other difficulties arise when the owner orally requests extra work with no written change order, but the owner does not expressly promise to pay for the additional work. In this situation, courts often view the lack of express promise to pay as indicating that the extra work was to be performed at no additional cost.213 Other courts, however, have allowed recovery under the theory that the request to perform extra work includes an implied promise by the owner to pay for the additional cost of such work.214 A contractor confronted with this situation presents a much stronger case where evidence exists that the contractor put the owner on notice during the course of the work that he expected 86 additional monies.215 Such evidence may be accomplished by presenting periodic bills to the owner.216 But if the owner clearly indicates when the work is ordered that he considers the work to be included in the original scope of work, the contractor is not likely to recover.217

As is evident from above, contractors who fail to obtain a written order before commencing extra work risk performing such extra work for free. Therefore, prudence suggests that contractors should refuse to perform extra work until receiving a written order in the form specified by the contract documents. As illustrated by City of Baltimore v. Clark,218 this holds true even if refusing to perform the extra work will cause massive delays to the overall project. In Clark, the City of Baltimore hired a contractor to construct a sewer. The city engineer directed the contractor to perform extra concrete work as was directed by other engineers in charge of the work. Subsequently, a dispute arose between the contractor and the engineers over the allowance for the extra concrete work performed by the contractor. Because of this dispute, the contractor stopped doing the concrete work for five full months. The contractor insisted that the engineers, as provided in the contract, should give him a written order for the extra concrete work in question. The court in Clark not only held that the contractor was justified in demanding a written order for the extra work, the contractor was also entitled to recover consequential damages incurred by reason of the delay.

Where, however, the owner insists that the extra work is within the original scope of contract, contractors less obstinate than the one in Clark may perform such work under protest and seek early arbitration or adjudication.219

Contractors faced with strict enforcement of the “written order” requirement commonly argue that this requirement has either been waived or modified. Contractors presenting the waiver or modification theories argue that just as the owner and general contractor may agree to cancel the entire contract, they may agree to waive or modify any part of it.220 Where the owner, either by words or conduct, manifests intent to compensate the contractor for extra work without requiring a written order, courts may find a waiver or modification of the written order requirement.221

Whether a waiver has occurred is a question of fact.222 As a result, many factors will play a part in a court’s determination of whether a waiver of the written changes requirement has occurred. Such factors include: (1) the owner’s knowledge that the contractor considered the work as a compensable extra; (2) the owner’s insistence that the work be performed; (3) any prior course of conduct whereby changes were performed and paid for without written change orders; and (4) the owner’s assurance that a written order was unnecessary.223 Courts, however, are reluctant to find a waiver of the written order requirement where the owner consistently utilizes the written change order process.224

In an effort to put some teeth into the “written order” requirement, owners frequently include “anti-waiver” clauses that purport to invalidate waiver of any contract provision unless in writing.225 The mistaken assumption with such clauses is that an express “anti-waiver” clause can legally negate the doctrine of implied waiver.226 As noted in a leading construction law treatise, “anti-waiver clauses are of little effect because of the overriding principle that any contract clause may be modified or waived expressly or impliedly by persons with requisite contracting authority.”227

Arguments based on the legal theories of waiver and modification may, in some instances, provide a basis for relief where the contractor has failed to comply with the written order requirement. Nevertheless, each of these theories presents various problems of proof. As a result, prudent contractors will insist on a written order by an authorized agent before proceeding with the extra work instead of relying on oral assurances.

Hand-in-hand with the changes clause in most standard form construction contracts is a notice provision whereby the contractor must give the owner notice of any claim for a change within a period of time specified in the contract documents.228 For example, AIA Document A201 requires that any such claim by a contractor requires that written notice be given to the owner within 21 days after the occurrence of the event giving rise to such claim or within 21 days after the claimant first recognizes the condition giving rise to the claim, whichever is later.229 Similarly, the Federal Acquisition Regulations impose a 20-day notice requirement for federal contract claims.230

As with the requirement that change orders be obtained in writing, courts generally enforce notice-of-claim provisions in a construction contract.231 For example, in JRJ Constr. Co. v. R.W. Granger & Sons, Inc.,232 the general contractor invoked a provision that required claims to be made within 21 days of discovery of the claim. When the subcontractor submitted claims for extra work, but did not comply with the 21- 89 day notice provision, the court had no difficulty concluding that “there [was] no genuine issue of material fact with regard to whether timely written notice was given to [the general contractor] on these claims.”233 Accordingly, judgment was entered for the contractor.

Courts recognize that the purpose for notice-of-claims provisions is to provide parties ample opportunity to investigate a claim that could result in a claim for additional expenditures. Similarly, courts recognize that notice requirements protect important concerns of the owner by (1) permitting early investigation of the facts underlying the claim when the evidence is still available, (2) allowing the owner to track the contractor’s costs, and (3) allowing the owner to consider alternative methods of construction to prevent unnecessary expenditures.234

Where a party has been given ample opportunity to investigate a potential claim, or has received sufficient notice absent strict compliance with the contractual provision, the Court may decide that such notice provisions have been substantially satisfied.235 However, the savvy contractor must be aware not only of the contract provisions requiring changes to be in writing, but also of contract provisions requiring the contractor to give the owner notice of a potential claim for additional compensation within a time period specified in the contract.

A written order authorizing changes is of little value unless such order is binding on the owner. No recovery may be had for unauthorized changes, except to the extent allowed under certain equitable doctrines.236 Disputes over proper authorization of change orders frequently arise when the owner is completely absent during the actual construction phase. This may occur because the owner relies on an architect, engineer or project manager to perform site inspections. If the owner is not present on a day-to-day basis during the actual construction, contractors will be forced to consult with the architect, engineer, project manager or other representative. When this happens, contractors should investigate the authority of any person ordering changes on the owner’s behalf to ensure that such order is binding on the owner.

4. Constructive Changes
Many changes to a contract are the result of formal orders from the owner. For example, when an owner directs a change, requests a price from a contractor for the changed work, and then issues a change order or construction change directive, there is no dispute that a change has occurred. More problematic, however, is when the owner’s action or inaction causes the contractor to change its work plan, but the owner refuses to recognize the change and refuses to issue a change order, construction change directive, or other acknowledgement of a change. The owner will then invariably defend against a claim by the contractor on the basis that the contractor failed to obtain an authorized written order prior to performing the work.

In order to allow a contractor relief under such circumstances, the judiciary has created the “constructive change” doctrine. A constructive change occurs when a contractor performs work beyond that required by the contract either pursuant to an informal order by the owner or in response to a condition caused by or within the contractual control of the owner.

The constructive change doctrine consists of two elements: (1) a “change” element and (2) an order or “fault” element.237 The “change” element addresses work beyond the scope of the contract. The order or fault element describes the reason that the contractor performed the work.238

Although there are no reported state court cases in Nebraska addressing the constructive change doctrine, a Nebraska federal court in Nebraska Public Power District v. Austin Power, Inc.239 specifically held that if the owner changed the contract without issuing change orders, the contractor could recover the costs of those changes under the constructive change theory. The Eighth Circuit Court of Appeals affirmed the district court, finding that “there was ample evidence to support Austin’s claim that Nebraska Power required Austin to perform additional work without issuing change work orders.”240

Outside of Nebraska, legal scholars and numerous courts have recognized, and permitted recovery, for five distinctive types of constructive changes: (1) disputes over contract interpretation during performance; (2) government (owner) interference or failure to cooperate; (3) defective plans or specifications; (4) nondisclosure of superior knowledge; and (5) constructive acceleration.241 Each of these five distinctive types of constructive changes is briefly discussed in turn.

1. Type I:
Disputes Over Contract Interpretation During Performance
A Type I constructive change occurs when the owner erroneously compels the contractor to perform work that is not actually required by the contractor. Type I constructive changes are often called “contract misinterpretations” because, as the name implies, this type of constructive change stems from the owner’s misinterpretation of the plans or specifications. Such “contract misinterpretations” often result from latent (hidden) ambiguities in the construction contract.242

An example of a Type I constructive change occurred in Metric Constructors, Inc. v. United States243 where a contractor brought suit seeking to recover expenses it incurred while completing work on the plumbing and HVAC systems at the Kennedy Space Station Processing Facility.244 The contract in Metric Contractors, Inc. called for ductwork and insulation of that ductwork in certain areas. During construction, the contracting officer required the contractor to use “flexible ductwork,” even though the specifications called for application of “rigid ductwork.” In rejecting the contractor’s request for additional compensation, the government argued that the ambiguity was patent (obvious).

In addressing this issue, the court noted it “must place the ambiguity in the contract along a spectrum of ambiguity. Along the spectrum there is a gray area . . . . If the ambiguity falls within this gray area it cannot be patently ambiguous and the language of the contract is construed against the drafter.”245 In finding that the ambiguity did not fall within the “gray area,” the court concluded that the ambiguity was latent and should be construed against the government.

The distinction between latent (hidden) and patent (obvious) ambiguities is significant. As in Metric Contractors, Inc., if the court finds the ambiguity to be latent, the contractor is likely to recover. But where an obvious – patent – ambiguity is found in a contract, the contractor has an affirmative obligation to seek clarification of the true meaning of the contract before submitting a bid.246

2. Type II: Government (Owner) Interference Or Failure To Cooperate
Type II constructive changes stem from the implied obligation in every contract that the parties act in good faith.247 This implied duty of good faith has spawned a host of subsidiary implied owner duties specific to the construction process, such as the duty to cooperate and efficiently manage its obligations under the contract, including the change order process.248

Under a Type II constructive change, the contractor has the burden of proving that the government’s (or owner’s) actions or inactions – i.e., the breach of its duty to cooperate with the contractor – caused the contractor to suffer damages. Note that Type II constructive change claims are usually filed as an alternative theory of recovery where a contractor is unable to recover under the contract itself.249

3. Type III: Defective Plans Or Specifications
Ever since the celebrated doctrine pronounced in United States v. Spearin,250 owners have been deemed to impliedly warrant the design adequacy of detailed construction plans and specifications. The Spearin doctrine has found almost universal acceptance in the state courts.251 The right of a contractor to recover additional costs of contract performance associated with defective plans or specifications, as an offshoot of the Spearin doctrine, has found similar acceptance under the constructive change doctrine.252 For example, in M.A. Mortenson Co. v. United States,253 the court granted recovery to a government contractor for costs incurred in investigating and repairing cracks in a fuel pipe later determined to have been caused by defective specifications.

4. Type IV: Nondisclosure Of “Superior Knowledge”
Type IV constructive changes are used to remedy claims resulting from the owner withholding “superior knowledge” vital to the contractor’s performance.254 As with Type II constructive changes, Type IV constructive changes are based on implied contractual obligations of the owner. In this sense, Type II and Type IV constructive changes partially overlap. But whereas Type II constructive changes focus on the implied obligations of good faith and cooperation, Type IV constructive changes focus on the implied obligation of the owner to affirmatively disclose superior knowledge.

To illustrate, in Miller Elevator Co. v. United States,255 the General Services Administration (“GSA”) entered into a contract with an elevator company for elevator maintenance services at a federal office building in Missouri. Some 16 months after the parties executed the contract, the GSA authorized substantial renovation to the building without notifying the elevator company. The renovation project caused the elevator company to perform additional maintenance and repairs outside the scope of the maintenance contract.

The elevator company sought an equitable adjustment in the contract for the value of the additional maintenance and repairs. The GSA defended on the grounds that the elevator company failed to obtain a written change order from the contracting officer before performing the additional work. The federal claims court held that a constructive change occurred because the government failed to disclose its superior knowledge that the GSA anticipated letting a $42 million contract for renovation of the federal office building.

5. Type V: Constructive Acceleration
Type V constructive changes typically occur when the owner refuses to give the contractor an appropriate time extension for an excusable delay, thereby forcing the contractor to “accelerate” to maintain the work schedule and avoid liability under the liquidated damages provision.256

The elements of proof for a claim for “acceleration” include: (1) an excusable or compensable delay to the critical path of the project schedule justifying an extension of time; (2) a request for a time extension by the contractor; (3) the time extension is wrongfully rejected by the owner or otherwise ignored; (4) express or implied direction by the owner to complete the contract by the unextended completion date; (5) timely notice by the contractor of an intent to pursue an acceleration claim; and (6) acceleration of performance by the contractor resulting in damages.257

The last element is often the most difficult to prove. For example, in Appeal of Utley-James, Inc.,258 the contractor proved excusable delays occurred and had requested and been refused a time extension. Moreover, the contractor also gave timely notice that it regarded the refusal to grant a time extension as a directive to accelerate performance. The contractor was unsuccessful, however, because it could not prove that it actually accelerated performance and incurred additional costs in completing the project.

5. Critical Project Documentation
Project documentation is essential for proving claim entitlement to cost and time. At a minimum, contractors should take care to maintain (1) requests for information, (2) labor time cards, (3) diaries and daily reports (4) photographs and videotapes, (5) schedules, (6) meeting minutes, (7) job cost accounting reports and records, and (8) change order and claim logs.

Generally, the contractor must establish the following elements in pursuing a claim or change order for out-of-scope work: (1) the work was outside the scope of contractual obligation; (2) the extra work was ordered or directed by the owner or someone authorized to act on the owner’s behalf; (3) the owner agreed, by words or conduct, to compensate the contractor; (4) the work was not rendered necessary by any fault of the contractor; (5) the amount being claimed is the fair and reasonable value of the extra work performed.259

With regard to the first element noted above, the contractor will be immeasurably aided if it can establish that the additional work was outside the contemplation of the contract documents. Establishing this element necessarily involves identifying which documents are included and excluded by the contract. For example, under the AIA scheme, bid related documents are not considered “Contract Documents” unless specifically enumerated in the parties’ agreement. Thus, the parties should carefully examine the definition of “Contract Documents” contained in their agreement because this definition may have an impact as to whether the work is outside the contemplation of the contract documents.

Once the contractor has established that the work was indeed out-of-scope, it must then establish that the owner or one of its authorized representatives authorized the work and agreed to compensate the contractor.260 Obviously, this element is easily established if the contractor can show that the owner directed the changed work by some formal document, such as a signed change order that is binding on the owner. More often than not, however, the contractor will have to show that it was constructively directed to perform the out-of-scope work. This burden always lies with the contractor. Moreover, in the event there is a constructive change, it may be more difficult for the contractor to establish the owner’s agreement to pay. Typically, it is beneficial to the contractor if it can establish that the owner was aware of or had notice that the work was being performed and the work was necessary to make the project constructible.261

Once the contractor has established that the work in question was outside the original scope of the contract and that the owner either directly or constructively authorized the work, the contractor must then prove that the extra work was required on account of its performance or poor workmanship.

Lastly, assuming that the contractor can establish the above elements, the contractor must show that the amount being claimed is the fair and reasonable value of the extra work performed. Typically, the most effective way of establishing this is through the use of segregated cost data for the work.262 Such costs should be consistent with what is considered the fair market value for the work.

196 See, e.g., AIA Document A201 – 1997, General Conditions of the Contract for Construction Art. 7.2 (Changes), Art. 7.3.1 (Change directives), & Art. 7.4.1 (Minor Changes) [hereinafter AIA Document A201 – 1997].
197 Mohrlang v. Draper, 365 N.W.2d 443 (Neb. 1985).
198 Ling v. Board of Trustees of Doane College, 1999 WL 571280 (Neb. App. 1999).
199 See, e.g., AIA Document A201 – 1997, General Conditions of the Contract for Construction, Paragraph 7.2 (changes), subparagraph 7.3.1 (change directives), subparagraph 7.4.1 (minor changes) [hereinafter AIA Document A201 – 1997].
200 A201 subparagraph 7.1.1 provides: 7.1.1 Changes in the work may be accomplished after execution of the Contract, and without invalidating the Contract, by Change Order, Construction Change Directive or order for minor change in the Work; subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents. AIA Document A201 – 1997, subparagraph 7.1.1. 104
201 Until the 1987 edition of the A201, a unilateral change by the owner was accomplished through execution of a “Change Order.” In the 1987 edition of the A201, the nomenclature was changed to distinguish a unilateral change order from one that had the approval of all parties (owner, architect and contractor). The latter retained the designation as a “Change Order” and the former, unilateral change order, became the “Change Directive.”
202 See F.A.R. § 52.243-4, 48 C.F.R. § 52.243-4 (2004).
203 For example, the federal “change order” provision is equivalent to the A201 “Change Directive.” Similarly, the federal “supplement agreement” provision is equivalent to the A201 “Change Order.”
204 2 Bruner & O’Connor, supra note 1, at § 4:2, 501.
205 Id. at § 4:2, 502.
206 Id.
207 Id. at § 4:2, 503.
208 See AIA Document A201-1997, subparagraph 7.3.1; F.A.R § 52-243-4(a), 48 C.F.R § 52.243-4(a) (2004).
209 See, e.g., AIA Document A201-1997, subparagraph 7.3.1; F.A.R § 52-243-4(a), 48 C.F.R § 52.243-4(a).
210 See, e.g., 13 Am. Jur. 2d Building and Construction Contracts § 23 (2004).
211 E.g., United States ex rel. McDonald v. Barney Wilkerson Constr. Co., 321 F. Supp. 1294 (D.N.M. 1971).
212 E.g., Son-Shine Grading, Inc. v. ADC Constr. Co., 315 S.E.2d 346 (N.C. 1984); Universal Builders, Inc. v. Moon Motor Lodge, Inc., 244 A.2d 10 (Pa. 1968).
213 E.g., Lundstrom Constr. Co. v. Dygert, 94 N.W.2d 527 (Minn. 1959).
214 D.K. Meyer Corp. v. Brevco, Inc., 292 N.W.2d 773 (Neb. 1980); cf. Hi-Valley Constructors, Inc. v. Heyser, 428 P.2d 354 (Colo. 1967).
215 Howard G. Goldberg & Robin G. Banks, Construction Law Handbook, § 21.02, 774 (Robert F. Cushman & James J. Myers eds., Aspen 1999).
216 Id.
217 Id.
218 97 A. 911 (Md. 1916).
219 See Construction Law Handbook, supra note 215, at § 21.02, 775.
220 Practical Construction Law 254 (Federal Publications Inc. 1998).
221 Id. (citing Ecko Enters., Inc. v. Remi Fortin Constr. Inc., 382 A.2d 368 (N.H. 1978)).
222 2 Bruner & O’Connor, supra note 1, at § 4:39, 589.
223 Practical Construction Law, supra note 220, at 241.
224 See, e.g., Dep’t of Transp. v. Dalton Paving & Constr., Inc., 489 S.E.2d 329 (1997); Rissler & McMurry Co. v. Sheridan Area Water Supply Joint Powers Bd., 929 P.2d 1228 (Wyo. 1996).
225 See A201, subparagraph 13.4.2 provides: No action or failure to act by the Owner, Architect or Contractor shall constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or 105 failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing. AIA Document A201 – 1997, subparagraph 13.4.2.
226 2 Bruner & O’Connor, supra note 1, at § 4:40, 592.
227 Id. (citing Wisch & Vaughan Constr. Co. v. Melrose Props. Corp., 21 S.W.3d 36 (Mo. Ct. App. 2000); CGM Constr. Inc. v. Miller, 693 N.Y.S.2d 763 (1999)).
228 See AIA Document A201 – 1997, subparagraph 4.3.2; F.A.R. § 52.243-4(b) and (d), 48 C.F.R. § 52.243-4 (b) and (d) (2004).
229 See AIA Document A201 – 1997, subparagraph 4.3.2.
230 See F.A.R. § 52.243-4(d), 48 C.F.R. § 52.243-4(d) (2004).
231 See, e.g., Cleco Constr. Co. v. Richmond Metro. Auth., No. LF-421-4, 2000 WL 20606 (Va. Cir., Jan. 10, 2000); JRJ Constr. Co., Inc. v. R. W. Granger & Sons, Inc., Case No. 97-2194, 1999 WL 706717 (Mass Super. Ct., July 29, 1999); Byron’s Constr. Co. v. North Dakota State Highway Dep’t, 448 N.W.2d 630 (N.D. 1989).
232 Case No. 97-2194, 1999 WL 706717 (Mass Super. Ct., July 29, 1999).
233 Id. at *10.
234 See, e.g., Byron’s Constr. Co. v. North Dakota State Highway Dep’t, 448 N.W.2d 630 (N.D. 1989); New Pueblo Constr. Inc. v. State, 696 P.2d 185 (1985); State v. Omega Painting, Inc., 463 N.E.2d 287 (Ill. App. 1984).
235 See, e.g., Pat J. Murphy, Inc. v. Drummond Dolomite, Inc., 232 F. Supp. 509, 522 (D. Wis. 1964) (recognizing that contractor’s failure to comply with notice provision did not bar claim when contractor verbally informed owner of the potential claim for additional compensation and claim was filed only after the parties could not agree on appropriate amount for further compensation).
236 See, e.g., Uhlir v. Golden Triangle Dev. Corp., 763 S.W.2d 512 (Tex. Ct. App. 1988) (holding that the contractor’s claim for extras was barred because it failed to obtain written authorization for the extra work, but nevertheless allowing the contractor to recover under the equitable theory of quantum meruit based on the owner’s implied legal obligation to pay for benefits received and knowingly accepted).
237 2 Bruner & O’Connor, supra note 1, at § 4:25, 549.
238 See Miller Elevator Co., Inc. v. United States, 30 Fed. Cl. 662, 678 (1994).
239 773 F.2d 960 (8th Cir. 1985).
240 Id. at 971.
241 See 2 Bruner & O’Connor, supra note 1, at § 4:25, 552-53; see also Miller Elevator, 30 Fed. Cl. at 678 (describing the different types of constructive changes).
242 See generally 2 Bruner & O’Connor, supra note 1, at § 4:27, 554-57.
243 44 Fed. Cl. 513 (1999).
244 Id. at 515.
245 Id. at 522.
246 Id. at 521-22.
247 See Restatement (Second) of Contracts § 205 (1981); Uniform Commercial Code § 1-
203 (1991).
248 2 Bruner & O’Connor, supra note 1, at § 4:31, 562-63. 106
249 Youngsdale & Sons Constr. Co. v. United States, 27 Fed. Cl. 516, 539 (1993).
250 248 U.S. 132 (1918).
251 See S. Bernstein, Construction Contractor's Liability To Contractee For Defects Or Insufficiency Of Work Attributable To The Latter's Plans And Specifications, 6 A.L.R 3d 1394 (1966) (citing authorities from numerous jurisdictions which recognize the doctrine of implied warranty of design specifications).
252 Practical Construction Law, supra note 220, at 246; See M.A. Mortenson Co. v. United States, 40 Fed. Cl. 389 (1998).
253 40 Fed. Cl. 389 (1998).
254 See,e.g., Miller Elevator Co. v. United States, 30 Fed. Cl. 662, 674-75 (1994).
255 30 Fed. Cl. 662 (1994).
256 Practical Construction Law, supra note 220, at 249.
257 See 2 Bruner & O’Connor, supra note 1, at § 4:34, 573.
258 Practical Construction Law, supra note 220, at 249.
259 Proving and Pricing Construction Claims at § 8.14 (Robert F. Cushman et al eds., 2d ed., John Wiley & Sons, Inc, 1996).
260 Id.
261 Id.
262 Id.

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