No Relief from Written Change Order Requirement
January 29, 2020
The Michigan Court of Appeals has held that, absent clear and convincing evidence of waiver, a contractor will not be relieved of the written change‐order requirement of its contract.
In Field Construction, Inc. v Midfield Concession Enterprises, Inc., the plaintiff‐contractor was under contract to build restaurants at the Wayne County Metro Airport. The contractor undertook extra work to meet the substantial completion deadline so that it would avoid $10,000/day in liquidated damages. The alleged cause of the extra work was: (1) delayed information from owner (WCAA), (2) “necessary changes to [the owner]’s plans,” and (3) “other circumstances outside of” the plaintiff’s control. The contract contained a written‐change-order requirement. But the contractor allegedly could not get written authorization for the extra work because of strict time constrains, combined with owner unavailability and hostility.
The contractor’s claim for extra work proceeded to a bench trial, and the owner prevailed by advancing the familiar no‐written‐change‐order defense. The Court of Appeals affirmed. In so doing, the court rejected the contractor’s argument that the owner waived, or was estopped from raising, the written change order requirement through its conduct—that is, by knowing that the contractor was undertaking the extra work and by making it difficult or impossible to get written change orders. The court held that the contractor had to prove estoppel or waiver by clear and convincing evidence and that “mere silence” isn’t good enough.
The contractor also argued that it should be allowed recovery under a quantum meruit (implied contract) theory, but the court rejected that argument as well. The court reasoned that the extra work was not for “items not contemplated in the original contract” and therefore fell within the written‐change‐order requirement.