Are Change Orders and Extras Different?

Because of the length of time it takes to complete a project, the number of parties involved, and the general unpredictable nature of construction work, it is rare that a contract for such work remains unchanged from start to finish.  While it is expected that changes to a construction contract may have to be made once a project is underway, no one wants the work to come to a stop while the parties negotiate, estimate, draft and execute changes, especially with workers, equipment and supplies on site, and the ever present need to meet scheduling deadlines.

Is it a Change or an Extra?

Be aware that there is a legal distinction between a change and an extra.  A change is a modification to an item that is already contemplated under the contract.  An extra, on the other hand, is material or work in addition to that which was addressed under the original contract.  Before entering into a construction contract one should determine if the contract addresses changes or extras and if so, whether they treated the same way.

AIA documents

Under AIA documents, there are two types of contract changes.  A change order is effectuated where the contracting parties agree to the nature of the work changed and the cost of such work in advance. In other words, there is a change at an agreed upon price and time.

Get Change Orders and Extras In Writing

Whether extras or changes, they need to be in writing to be enforceable. That said, this requirement may be waived based on the parties’ conduct or a verbal understanding. Just saying something has to be in writing will not necessarily make it so. But as in everything else related to construction, having everything in writing is absolutely the way to go.

Identify in writing the specific persons who are authorized to make changes or extras and to bind a contracting party. When drafting a change order or extras, it is sensible to include the date, an adequate description of the work to be performed, the price (or, at a minimum, a method for determining the price), a description of how long the work is estimated to take and any exceptions or objections as to what is being resolved by the change order or extra.

Because it is almost guaranteed that a change order or extra will become part of your construction project be prepared. Get them in writing.