Generally, extra work on a construction contract, i.e. work not covered in the scope of work contained in the contract between the owner and contractor, requires written authorization by the owner. Without such authorization, a contractor runs the risk of not being paid for the extra work performed. However, an owner can waive the written authorization requirement. A court will look to the owner’s statements as well as his conduct (both actions and inaction).
The issue of waiver normally arises when a contractor seeks payment for the extra work he has performed, but failed to comply with the parties’ contract provision calling for written authorization to be obtained. In seeking to avoid an inequitable result, courts will pay special attention to whether the contractor made clear to the owner that the work was, indeed, “extra.” If careful attention was made to ensure the owner’s knowledge of the “extra” status of the work, the owner’s action in insisting upon moving forward with the extra work may signal that the owner has waived the written authorization requirement. Further, repeated promises by an owner to pay for the extra work can lead to a finding of “waiver.”
A “waiver” by the owner is not generally a universal grant to ignore the written authorization requirement for all extra work on the construction project. Though an owner may waive the written authorization requirement for a specific piece of extra work, he may certainly not waive the authorization requirement for other extra work. It would be unreasonable for a contractor to assume that because the owner waived the requirement in one aspect of the project that the contractor is then given carte blanche to perform all manner of extra work without the requisite authorization. Each piece of extra work, and the necessary authorization therefor, must be taken on its own merits.
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