The use of change orders is a basic element of the design and construction process. While every client and design firm want plans and specifications to be carefully coordinated and unambiguous, the reality is that it is not cost effective for a client to pay a design firm for the level of service necessary to achieve a “perfect” set of instruments of service. No matter how extensive design services may be, certain aspects of the design will require modifications to reflect conditions at the construction site, availability of specific materials and systems, and changes in the project program. Construction is not manufacturing; there is no ability to refine the project through prototypes, destructive testing, and redesign.
Reasonable practice involves a certain level of flexibility in the development of a project as it moves from final design through the construction process so that changes will improve the outcome. A certain amount of imprecision and incompleteness is to be expected in design documentation as professional judgment is required in the performance of professional services before and after construction. The preparation of instruments of service does not mean that all details of a completed project will be covered so clients should anticipate a certain number of errors, omissions, ambiguities, and inconsistencies.
The standard general conditions of construction contracts require contractors to perform work and furnish materials and equipment that could reasonably be inferred from the contract documents, or from prevailing custom or trade practices, to produce the intended result. Construction documents are at best an imperfect expression of what the client intends the contractor to construct, and circumstances during construction will make it necessary to revise the drawings and specifications. Clients and design firms need to reach an understanding about the practical limitations on the design firm’s ability to generate a comprehensive set of plans and specifications.
Contractor change orders can disrupt an otherwise orderly construction process and, if not properly implemented, can result in unnecessary and costly disputes. The change order process should identify any need for a change as quickly as possible. In addition, the change order should be based on a reasonable process to determine time and cost, and the actions should be carried out in a timely manner to prevent delay.
Whether the cause of a change order is completely outside of the control of the design firm, results from professional negligence, or is simply an imperfection in the documentation that falls within the expected range of professional standards makes a significant difference. Clients should provide a contingency budget for a reasonable level of change orders. It is inappropriate for the client to shift all responsibility above that contingency to the design firm, regardless of whether the design firm was negligent and irrespective of whether the cost is only for the harm caused by the negligence or the change adds value to the project. Such contractual requirements exceed the design firm’s normal legal liability to pay the reasonable cost directly associated with negligent errors or negligent omissions on the part of the design firm less the increased value to the client created by such change.
Design firms, clients, and contractors should understand the change order process and the need to adhere strictly to that process. Under the standard general conditions, a design firm has the obligation to review change order requests objectively and in a timely manner. The contractor has the obligation to provide adequate documentation as required by the general conditions. No change involving any increase in cost or extension of time can happen without written modification of the construction contract evidenced by the change order. Strictly following a reasonable change order procedure and documenting the decision process reduce the potential for a change order to generate unnecessary misunderstandings and conflicts.