Larry Lubka of Hunt Ortmann Law Group discusses the importance of notice when change orders occur in contstruction contracting.

1. AGC 2011 FALL CONFERENCE
NOTICE, NOTICE, NOTICE
LARRY LUBKA

2. • Your typical contact has a couple of clauses
affecting change orders:
• The first one usually states: CONTRACTOR
SHALL GIVE X DAYS WRITTEN NOTICE OF
ANY CHANGE TO THE CONTRACT.
• The second one usually states: ANY CHANGE
TO THIS CONTRACT MUST BE IN A WRITING
SIGNED BY BOTH PARTIES.

3. • Curiously, many contractors seem to miss those
two clauses.
• Over the past fifty years courts have allowed any
number of exceptions to those rules.
• Example 1: The owner caused the problem, so it
did not need notice of the problem.
• Example 2: The owner knew of the problem and
failed to disclose it.

4. • As to the written change order, courts have held
that both parties can orally agree to change the
contract terms and will enforce the agreement,
particularly when the oral agreement is fully
performed (oral agreement to build a new wall
and the wall was built).

5. • On October 6, 2011 the Fifth Appellate District
issued an opinion in the case of:
• GREG OPINSKI CONSTRUCTION, INC. v. CITY
OF OAKDALE
• Award of damages against Contractor for
lateness and defects.
• The tide is turning back to strict contract
construction.

6. • The Opinski contract provided:
• Completion time and contract price could only be
changed by a written change order.
• The change request could be accomplished in
two ways.
• Changes could be done by mutual agreement.
• Or …

7. • Changes could be “referred initially to Engineer in
writing with a request for a formal decision …”
The party making the claim was required to give
written notice of the claim to the engineer and to
the other party “promptly (but in no event later
than thirty days) after the occurrence of the event
giving rise thereto….”

8. • Data supporting the claim were required to be
submitted within sixty days after such occurrence,
unless the engineer allowed additional time.

9. • Civil Code §1511 does not apply – obstruction of
performance by owner.
• “It made no difference whether Opinski’s timely
performance was possible or impossible under
the circumstances.

10. • “If the contractor wished to claim it needed an
extension of time because of delays caused by
the city, the contractor was required to obtain a
written change order by mutual consent or submit
a claim in writing requesting a formal decision by
the engineer. It did neither.”

11. • If you have any questions regarding this
presentation, contact Larry Lubka:
• By Phone: 626-440-5200
• By Email: lubka@huntortmann.com