Editor's Notes

Construction contracts commonly call for advance written, signed change orders to authorize additional or changed work, but the realities of a bustling, fluid construction site get in the way. Even with reasonable project management by owner and contractor, this is a difficult standard to meet. Case law consistently holds written change order requirements enforceable. Yet the doctrine of “waiver” is always in play.


An Ohio court recently addressed this situation. Ohio has rock-solid judicial support for the enforceability of written change order requirements, yet even Ohio precedent has on occasion recognized the possibility of waiver. On the project in question, a lower-level owner administrator without contractual authority had consistently sent the contractor emails regarding changed work while implying the authorized individual was in the informational loop.


The second case in this issue addressed the question of when the payment period under a state Prompt Payment Act started to run. Did it start when the contractor’s payment application was received by the project architect in accordance with the contractual procedure? Or did it not start to run until the owner received the application, certified for payment, from the architect?


The third case involves certification of claims under the federal Contract Disputes Act. When a claim is certified in a defective manner, can the certification be corrected even though the statutory time limitation for submission of claims has expired?




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