Massachusetts Business Attorney · Construction Law
Almost every construction project changes once work begins: a different finish, unexpected site conditions, or a schedule that slips. A change order is how the parties are supposed to price and approve that change. When the paperwork does not keep up with the work, the result is often a payment dispute at the end of the job.
This article covers the Massachusetts rules that most often decide these disputes, followed by practical steps for contractors and owners.
Written change-order clauses and the “verbal authorization” problem
Most construction contracts say that no extra work will be paid for unless it is authorized by a signed, written change order. In practice, changes are often requested in a conversation or a text, and the contractor does the work to keep the job moving. When the bill arrives, the owner points to the clause and the contractor points to the conversation.
Private contracts: modification by agreement or conduct
The Supreme Judicial Court (SJC) has held that a contract’s requirement of written consent to changes does not automatically bar a later oral modification. In First Pennsylvania Mortgage Trust v. Dorchester Savings Bank (1985), the court applied the rule that the mode of performance required by a written contract may be varied by a later oral agreement supported by consideration, and said that the parties’ agreement to modify a writing requirement may be inferred from their conduct and the surrounding circumstances.
The court has also made clear that this is not a loophole. In Cambridgeport Savings Bank v. Boersner (1992), the SJC repeated that a clause requiring written amendments “does not necessarily bar oral modification,” but held that the evidence of a later oral modification must be strong enough to overcome the presumption that the written agreement expresses the parties’ intent. The claimed modification in that case failed for lack of sufficient proof.
Neither case was a construction dispute, but the same contract principles apply to a construction contract. A contractor may be able to recover for verbally authorized work, but only with convincing evidence that the owner requested or agreed to it. An owner who directs extra work while ignoring its own paperwork weakens a written-change-order defense.
Public contracts: a stricter standard
Public construction contracts are treated more strictly. In Glynn v. City of Gloucester (1980), a dispute over a city road contract, the Appeals Court explained that a contractor generally cannot recover for extra work without showing compliance with the contract’s procedures and the statutory requirement of written authorization, unless the public agency waived or excused compliance. To prove waiver, the contractor must show “clear, decisive, and unequivocal conduct” by an authorized representative of the agency. A finding that the city was simply aware of the extra work was not enough.
The Prompt Pay Act: change-order deadlines on large private projects
The Massachusetts Prompt Pay Act, G.L. c. 149, § 29E, applies to a “contract for construction,” which the statute defines as a contract on a project where a mechanic’s lien may be established under G.L. c. 254, §§ 2 or 4, and where the prime contract with the owner has an original price of $3,000,000 or more. Projects containing or designed to contain one to four dwelling units are excluded. Because it is tied to the private mechanic’s lien statute, the Act is generally understood to cover private projects.
Subsection (d) sets the rules for written requests for an increase in the contract price, which is what most people call a change order request:
- 30-day decision window. The contract must provide a reasonable time to approve or reject the request, not more than 30 days after the later of the start of the work on which the request is based or the submission of the written request. At each lower tier, the period may be extended by 7 days beyond the period at the tier above.
- Deemed approval. A request that is neither approved nor rejected in time “shall be deemed to be approved” and may be submitted for payment in the next progress payment application, unless it is rejected before the date payment is due.
- Written, explained, good-faith rejection. A rejection, in whole or in part, must be in writing, must explain the factual and contractual basis for the rejection, and must be certified as made in good faith.
- Disputes cannot be stalled. A rejection is subject to the contract’s dispute resolution procedure, and a clause requiring a party to wait more than 60 days after the rejection to start that procedure is void.
The statute also says that a contract provision waiving or limiting § 29E is void. For more on the Act’s progress payment and pay-if-paid rules, see our article on construction payment disputes in Massachusetts.
Public projects: differing site conditions and delay
Two statutes require specific clauses in public construction contracts subject to G.L. c. 149, § 44A or G.L. c. 30, § 39M.
Differing site conditions (G.L. c. 30, § 39N)
Under § 39N, if the contractor or the awarding authority finds that subsurface or latent physical conditions differ substantially or materially from those shown on the plans or indicated in the contract documents, either party may request an equitable adjustment in the contract price. The request must be in writing and delivered as soon as possible after the conditions are discovered. If the conditions differ materially from the contract documents, or from those ordinarily encountered in similar work, and they increase or decrease the cost of performance or require a change in construction methods, the awarding authority must make an equitable adjustment and modify the contract in writing.
Suspension and delay (G.L. c. 30, § 39O)
Under § 39O, the awarding authority may order the general contractor in writing to suspend, delay or interrupt the work for its convenience. If there is a suspension, delay or interruption of 15 days or more, or one due to the awarding authority’s failure to act within the time specified in the contract, the authority must adjust the contract price for the increased cost of performance, without profit on that increase. No adjustment is made to the extent another contract provision already provides an equitable adjustment for the same cause.
The notice rules are strict. The contractor must submit the amount of the claim in writing as soon as practicable after the delay ends and no later than final payment. Except for costs due to a suspension order, the authority may not approve costs incurred more than 20 days before the contractor gave written notice of the act or failure to act behind the claim. The statute also gives a subcontractor whose costs increase because of such a delay the same rights against the general contractor that the general contractor has against the awarding authority.
No-damages-for-delay clauses: what you can and cannot recover
Many contracts contain a “no damages for delay” clause, which gives the contractor more time for a delay but not more money. Massachusetts courts generally enforce these clauses as written. In Reynolds Bros., Inc. v. Commonwealth (1992), the SJC enforced a public contract’s no-damages-for-delay clause and held that the contractor could not avoid it by calling its claim one for “hindrances” or “interferences” rather than delay.
On public contracts, though, § 39O sets a floor. In the same case, the SJC said the contract must be read as containing the provision the statute requires and that, to the extent the written contract conflicts with it, “the required provision controls.” The contractor in Reynolds Bros. still lost its statutory claim because there was no written suspension order and its other delay theory failed on the facts. The takeaway is that a no-damages-for-delay clause on a public job does not wipe out the statutory price adjustment, but a contractor must fit its claim within the statute and meet its notice requirements.
Whether a particular clause bars a particular claim depends on its exact wording and the facts.
Home improvement contracts under Chapter 142A
For residential work covered by the home improvement contractor law, G.L. c. 142A, § 2 requires every agreement to perform residential contracting services over $1,000 to be in writing. The contract must contain, among other things, the complete agreement, a detailed description of the work and materials, the total price, a payment schedule, and all parties’ signatures. Work may not begin until the contract is signed and the owner has received a copy.
Section 2 does not set out a separate change-order procedure. But because the written contract must reflect the complete agreement and price, the safest practice is to put every change in scope or price in a signed writing before the changed work starts. Separately, § 17 lists, among prohibited acts, deviating from or disregarding plans or specifications in any material respect without the owner’s consent.
Protecting yourself as a contractor
- Read the change and notice clauses before you sign. Know who can authorize changes, what form is required, and the deadlines for notice and claims. See our article on contractor-focused contract review.
- Get it in writing before you build it. If a signed change order is not possible, at least send a same-day email or letter confirming who requested the change, what it is, and that you expect to be paid for it.
- Give written notice of delays and differing conditions promptly. On public work, the 20-day lookback in § 39O and the “as soon as possible” notice in § 39N can decide the claim.
- Track the Prompt Pay Act clock. Note when each request was submitted and whether a compliant written rejection arrived in time.
- Keep daily records. Daily logs, photographs, time and material records and meeting minutes often prove that an owner requested the work.
- Protect your security. Mechanic’s lien and payment bond deadlines run regardless of a pending change order dispute. See our articles on Massachusetts mechanic’s liens and surety bonds in Massachusetts construction.
Owners: protect yourself too
- Name who can approve changes. Limit authority to specific people.
- Follow your own procedures. Consistently requiring written change orders makes it harder for a contractor to argue the requirement was modified by conduct.
- Respond on time and in the right form. On projects covered by § 29E, reject a request in writing, explain the factual and contractual basis, and certify the rejection in good faith within the deadline, or risk deemed approval.
- Object promptly. If work is proceeding that you did not authorize, say so in writing right away rather than waiting for the invoice.
For a broader look at how these disputes play out, see key legal issues in Massachusetts construction disputes for owners and contractors.
Frequently asked questions
Can a contractor get paid for extra work that was approved only verbally?
Sometimes. On private contracts, a written-modification clause does not necessarily bar an oral modification, but the proof must be strong. On public contracts, the contractor generally must show compliance with the written procedures or a clear, decisive and unequivocal waiver by an authorized agency representative.
What happens if an owner ignores a change order request on a large private project?
On a project covered by G.L. c. 149, § 29E, a request that is not approved or rejected within the contract’s time period (no more than 30 days) is deemed approved and may be included in the next progress payment application, unless it is rejected before payment is due.
Are no-damages-for-delay clauses enforceable in Massachusetts?
Generally, yes, as the SJC held in Reynolds Bros., Inc. v. Commonwealth (1992). On public contracts subject to G.L. c. 30, § 39O, however, the statutory delay provision is read into the contract and controls over conflicting contract language, subject to its written-order and notice requirements.
Getting help with a change order dispute
Change order disputes are usually won or lost on documents and deadlines, so review the contract and notice record early. Learn more about our Massachusetts business law services, or contact our office at 978-273-8337.
About the Author
Richard Alan Gaudet, Esq. is a Massachusetts attorney at the Law Offices of Richard Alan Gaudet, LLC in Middleton, Massachusetts, who advises contractors, subcontractors and property owners on construction contracts, payment disputes and commercial litigation. His practice focuses on professional license defense, business law and litigation, family law, and landlord representation, serving clients across Northern, Eastern, and Central Massachusetts. Reach him at 978-273-8337 or rgaudet@gaudetlawoffice.com. Office: 35 Village Rd., Ste 100, Middleton, MA 01949.
ABOUT THIS ARTICLE
This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.
