I had an interesting question last week from Bryan, a Tennessee contractor.

Bryan wondered why any contract needs to say that changes require mutual agreement. Isn’t that the law? Better to keep contracts short and sweet. Anything in a contract about changes requiring mutual agreement is surplus. Right?

Bryan acknowledged that some owners can’t resist changing the scope of work. “I definitely do not want to agree to that in my contracts.” Owners need to understand: They can’t make changes any time they want. That goes without saying. So why say it?

“If I leave it out, the law will be on my side if an owner tries to force me into a change in scope, correct?”

Good Question.

Changes are an important issue on any job. Few jobs are completed without at least a couple of changes. Construction is too permanent and too expensive to ignore opportunities for improvement as they become obvious.

I did a blog post on discretionary changes a few years ago.

Here are some good rules to follow on all changes, discretionary or otherwise:

To answer Bryan’s question:

The “mutual agreement” language wouldn’t be needed in contracts if all changes were discretionary. But many changes aren’t — such as changes required by the inspector or an emergency or a shortage of labor or materials or a mistake in the plans or unexpected site conditions.

The issue in mandated changes isn’t, “Will extra work be part of the job?” The work has to be done, with or without mutual agreement. The issue will be, “Who pays?” An owner might say, “It’s not my fault. You’re the professional. You should have known! It’s your problem. Deal with it.”

The “mutual agreement” language in a contract strengthens your hand when the only issue is price. Your reply could be, “OK. The change is required. We can agree on that. It’s extra work, not part of our contract. Here’s my price. Do we have mutual agreement?”

You know the job and the owner. If required changes are likely and if the owner can be expected to play hardball on changes, I recommend including language on required changes in your contract:

  • Any change required to conform to laws, codes or ordinances is extra work.
  • Any change required due to defects in the plans or specs is extra work.
  • Any act or omission by the owner which increases cost or delays completion is extra work.

If problems are likely on mandated changes, write a little extra leverage into your contract:

  • Failure to agree on changes won’t delay payment for any other part of the job.
  • Charges for extra work will be the contractor’s normal selling price on similar jobs.

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