Do Virginia Courts Enforce Notice Provisions for Change Work in Construction Contracts?

Let’s look at the question of whether Virginia courts enforce notice provisions for change work in construction contracts.

How’s this for a typical lawyer answer? “It depends.”

For starters, a public contract is treated differently from a private contract. For public contracts, general contractors should be very careful to provide notice in strict compliance with both the contract and Virginia Code § 33.1 – 386. This was the subject of Commonwealth v. AMEC Civil, LLC. The Code requires written notice of the contractor’s intention to file a claim, which must be given at the time of occurrence or at the beginning of the work on which the claim is based. In the AMEC case, the Supreme Court of Virginia held:

Code § 33.1-386(A) is to be strictly construed, and is clear and unambiguous, stating that contractors “shall” provide “written notice” to VDOT. We hold that actual notice cannot satisfy the written notice requirement in Code § 33.1-386(A), and that written notice is required.

For private contracts, Virginia law is a bit more conflicted (but it is still a good idea to give written notice).

In Virginia, contracting parties can change a written contract’s notice requirements through their conduct (as opposed to a written amendment, etc.) when there is clear and convincing evidence of their mutual intent to do so. Check out: Cardinal Development Co. v. Stanley Constr. Co., Inc. So, a notice requirement in a contract will not be strictly enforced when the conduct of the parties indicates that the parties were not requiring written notice for agreed upon changes, but they must be proven by clear and convincing evidence.

But in a case (recently discussed by our friend Chris Hill over at the Construction Musings blog – he has a link to the opinion), the U.S. District Court for Eastern District of Virginia held that when a contract requires written change orders, the parties must get written change orders to get paid for the extra work.

Given the landscape, it’s always a good idea to get your change orders in writing. Contractors should always provide Notice for changes in compliance with the contract’s requirements. It is just too easy to do – especially when considering to the risks of failing to do so.

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