Change Order Disputes: Getting Paid for Extra Work

What does a typical change order clause require?

A written order, signed by the owner or its authorized representative, describing the change, the price adjustment and the time adjustment, before the work is performed. Many contracts add that the contractor waives any claim for extra compensation not submitted within a set number of days, and that no oral instruction, course of dealing or payment constitutes a waiver of the writing requirement. Standard forms also recognize a construction change directive, by which the owner can order work to proceed before price is agreed, with the price set later by the contract's method.

These clauses exist because owners want to control cost and because the field is full of people who say yes. Courts in Texas treat them as ordinary contract terms and enforce them. The questions in a dispute are therefore whether the clause was satisfied, whether it was waived, and whether another theory of recovery applies.

When has the writing requirement been waived?

When the party who insisted on it acted inconsistently with it. Waiver is the intentional relinquishment of a known right, and it can be shown by conduct. Facts Texas courts have found persuasive include an owner's representative directing the change in the field, the owner's knowledge that the work was being done and acceptance of it, a pattern of paying for other changes that were never put in a signed order, and emails or meeting minutes acknowledging the extra scope and price. A clause that says conduct can never waive the requirement makes the argument harder but not impossible, because that clause too can be waived.

What does not help: the contractor's own belief that the work was extra, a conversation with a superintendent who had no authority to commit the owner, or a change the contract already required as part of the base scope. Authority is a frequent battleground; the contract usually names who can approve changes, and a project manager's verbal approval may not bind the owner.

Example

Suppose a Dallas drywall subcontractor is told by the general contractor's superintendent to add a second layer of board on the corridor walls after the owner's acoustical consultant changed the detail. The subcontractor emails the superintendent a price the same day, receives a reply of "proceed, we'll paper it," and finishes the work, which the owner's architect inspects and approves. Three months later the general contractor refuses the invoice because no change order was signed. The subcontractor's claim rests on the written direction to proceed, the general contractor's knowledge and acceptance, and the architect's approval. If the general contractor has paid two earlier changes on the same project without signed orders, the waiver argument is considerably stronger.

What if the contract claim fails?

Texas allows recovery of the reasonable value of services or materials furnished and knowingly accepted when there is no enforceable contract covering them. The limit is that quantum meruit is generally unavailable when an express contract covers the same work, which is exactly what an owner argues when the contract has a change order clause. The claim fits best when the extra work falls outside the contract's scope entirely, or when the contract has been abandoned or terminated. Quantum meruit and unjust enrichment in Texas explains the elements and the express-contract bar.

Can I refuse to do unsigned extra work?

Yes, within limits, and since 2023 by statute. Under Tex. Prop. Code § 28.0091, a contractor or subcontractor may elect not to proceed with additional work directed by the owner if it has not received a written, fully executed change order for that work and the value of that work, together with earlier owner-directed additional work still without an executed change order, exceeds ten percent of the contractor's or subcontractor's original contract amount. A party that properly makes the election is not responsible for damages associated with it. The statute applies to contracts entered into on or after September 1, 2023.

Below the ten percent threshold, the contract governs. Many contracts require the contractor to proceed with directed changes and resolve price later, and stopping work over a change order dispute can be a breach. The practical path is to issue a written notice that the work is considered a change, state the price and time impact, request a change order or directive, and proceed under protest if the contract requires it, preserving the claim. The Texas Prompt Payment Act covers the chapter the ten percent rule sits in.

What documentation wins change order disputes?

• A written notice, sent the day the extra work is directed, that identifies the work as a change and states the expected cost and schedule effect, sent to the person the contract names.
• The direction itself: the email, RFI response, revised drawing, consultant memo or field order that caused the change.
• Daily reports and timesheets that separate change order labor and materials from base scope.
• Photographs before, during and after, with dates.
• Meeting minutes and pay applications that list the pending change and were not objected to.
• The contract's notice and claim deadlines, with proof each was met.

Documenting a construction dispute covers the full record.

Can extra work go into a lien?

Yes, if it was furnished to the improvement under the claimant's contract, including changes reasonably contemplated by it; the lien statute's definition of completion expressly includes extras and change orders (Tex. Prop. Code § 53.001). The amount claimed must be what is owed, so a lien that includes disputed extras should be supported by the same documentation. An inflated lien invites a summary motion to remove and, where intent to defraud is shown, fraudulent lien liability; how mechanic's liens work in Texas explains the limits.

Attorney's fees and the forum

A contractor who recovers on a written or oral contract claim for extra work may recover reasonable attorney's fees from an individual or organization under Tex. Civ. Prac. & Rem. Code § 38.001, after presenting the claim and allowing 30 days. Most construction contracts also carry a prevailing-party fee clause and an arbitration clause, so the dispute may end up before an arbitrator rather than a Dallas County jury. Tina Wysk represents contractors, subcontractors and owners in change order and extra work disputes in Dallas–Fort Worth.