Contractor Loses Without Written Change Order
Kegler Brown Construction Newsletter June 1, 2007
The Ohio Supreme Court has ruled that a contractor who removed additional hazardous material on a unit price basis without a written change order did so at its own peril and denied recovery for almost a million dollars of extra work. Foster Wheeler Enviresponse v. Franklin County Convention Facilities Auth. (1997), 78 Ohio St. 3d 353. The contractor had agreed to remove a certain quantity of contaminated soil for the public authority. Additional quantities over and above the base bid were to be paid on a unit price basis, but the public authority maintained that increases in the quantity of work were an alteration in the scope of work that required a written change order. The Supreme Court agreed, despite the fact that the public authority knew that additional quantities were being removed and its consultant was allegedly "signing off" on the measurements of soil removed. This case emphasizes the dire consequences to contractors that can occur when the written change order requirements are not strictly complied with before performing the extra work.