Timing Your Change Orders

There's a lot going on here. The EJCDC General Conditions say that the contractor must inform the engineer that he will be making a claim within 60 days of the "event giving rise to the claim." So, in theory, if more than 60 days passed since you gave him the detail, he has no basis for a claim. He has passed the time the contract allows to seek extra cost for the inlet.

Another paragraph in the General Conditions says the contractor must review the contract documents: 1) during the bid phase, 2) before construction starts, and 3) as construction progresses; when he finds a discrepancy he is to bring it to the engineer's attention, and not proceed with that portion of the work until the discrepancy is worked out. It would appear, in this case, that the contractor should have caught this lack of a detail either while bidding (after all, he submitted a bid that included a price for oversized inlets) or before proceeding with the construction. He should have sought clarification long before he did. So it would appear that that window of opportunity has also passed.

And yet, I find myself sympathetic to the contractor's plight. The construction documents given during the bid phase were defective. Sure, he or another bidder should have caught that a detail was missing, and asked the original engineer for a detail. Opportunity lost. Right after the bid phase he could have brought this to the engineer's attention, and had the detail in hand before the work ever began, working out pricing at that time. Another opportunity lost. When you gave him the detail, he should have assessed the cost to build to that detail versus whatever assumptions he made during bidding, and immediately informed you about extra costs that would be involved. He didn't, and a third opportunity was lost.

But the fact remains that the construction documents were defective (no fault of yours). I have a hard time asking a contractor to bear the expense of an omission by the engineer. Sure, he didn't follow the letter of the contract, but he built the oversized structure according to the detail you gave him. I assume you judged the workmanship to be acceptable, so the owner has received the benefit of the work. Perhaps, because of his failure to avail himself properly of the remedies in he contract, the contractor is in a weaker position as to what the price of the change order should be, but I think you should recommend to the owner that the contractor be paid for the more expensive construction.

Another item to consider is this statement, which is in the EJCDC General Conditions concerning Reporting and Resolving Discrepancies: “Contractor shall not be liable to Owner or Engineer for failure to report any conflict, error, ambiguity, or discrepancy in the Contract Documents unless Contractor knew or reasonably should have known thereof.” Should the contractor have caught much earlier that the drawings did not include a critical detail? Probably. But in this case, the contractor noted the omission in the drawings, brought it to the engineer’s attention and asked for clarification, and did the work he was asked to do in an acceptable manner. So he missed deadlines for asking for extra payment… he still earned the money.

This is a good question. The contract documents should be followed by all parties involved: owner, contractor, and design professional (engineer, architect, landscape architect). But payment for acceptable work should always be a consideration when, for whatever reason, full adherence to the contract documents has not occurred.