During construction, the parties’ focus is often on maintaining a good working relationship. That is a valuable goal, however, it can sometimes result in parties avoiding technical requirements in their contracts, including for such things as field directions. The parties understandably want to keep the project on track, often accommodating modifications to the work agreed upon in the field; however, doing so contrary to contractual obligations may void rights respecting those modifications.
Addressing Differing Circumstances
It is not uncommon that the parties identify circumstances differing from those expected from the contract documents. Sometimes those things are relatively minor and easily addressed, but other times they are not minor and more difficult to address.
Some can arise in a simple discussion during an onsite meeting with a request or promise to make a change or to further investigate an issue. And others may manifest as field directives/memos issued to handle such unexpected events, or they can be issued more formally as a construction change directive which further addresses changes in the contract sum or time which might delay the project if not implemented expeditiously. But, however, they result, parties must be wary of their consequences.
Among other concerns, even the smallest request, if not fully researched and evaluated, could unknowingly balloon into substantial unexpected costs, code violations, or safety issues. As an example, the relocation of a door, while from a construction standpoint easy to do, could result in such adverse consequence as handicap accessibility violations, and so create the potential for penalties, civil remedies, or worse, personal injury
Thus, regardless of the size or magnitude of the prospective change, the parties should use their best efforts to fully research and evaluate resulting consequences, not just for that particular item but also the project as a whole. Moreover, it is important for the parties to make decisions consistent with contractual requirements and for the practical purposes of confirming their field agreements as part of the project records. Following the contract requirements avoids later disputes and should be viewed by the parties as an important aspect of maintaining a positive relationship for the project, and not negatively. Additionally, clear documentation is valuable to the parties if unexpected circumstances later develop.
All parties to all projects should be wary of the old saying, “sometimes no good deed goes unpunished.” When an issue arises, large or small, involved parties should initially seek to resolve such issues at the lowest level, but should circumstances rise to the level of a formal dispute, parties should seek legal counsel to help resolve and / or defend their rights. Following contract provisions can help avoid disputes, but when unavoidable, a well-documented project file can provide for a strong defense once memories have faded, and those involved have moved on to the next project.
