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Construction projects rarely proceed exactly as planned. Designs change, site conditions differ from expectations, materials become unavailable, and owners may decide to expand or modify the original scope of work. A change order provides a formal mechanism for addressing those changes and modifying the parties’ original agreement. Without proper authorization and documentation, however, a change that appears routine can quickly become a construction dispute involving additional costs, project delays, or competing interpretations of the contract.

For owners and contractors alike, understanding the change-order process and documenting changes as they occur can help protect contractual rights and reduce the risk that a project adjustment becomes a costly legal problem.

What Is a Change Order?

A change order is a formal modification to an existing construction contract. It generally changes some aspect of the work originally agreed upon and may affect the scope of work, contract price, completion date, or some combination of the three.

A change order might be necessary when:

• An owner requests additional work
• The owner removes work from the original scope
• Design plans or specifications change
• Unforeseen site conditions require a different scope of work
• A specified material or product becomes unavailable
• A code or regulatory requirement requires a modification
• The contractor encounters conditions that were materially different from those anticipated when the contract was originally signed

A properly documented change order should make clear what is changing and how that change affects the parties’ obligations.

That may sound straightforward, but problems arise when the parties begin making changes or performing additional work before they agree on the consequences of the change.

When Is a Change Order Necessary?

Not every adjustment to a project necessarily requires a formal change order. The answer depends largely on the construction contract.

Construction contracts often establish procedures for handling changes, including who may authorize them, how changes must be documented, and how adjustments to the contract price and schedule will be calculated.

For that reason, parties should review the contract’s change-order provisions before assuming that a particular instruction constitutes an authorized change.

For example, a project manager might tell a subcontractor to perform additional work in the field. The subcontractor may reasonably believe that the instruction means it will be paid for the additional work. But if the contract requires written authorization from a particular party before additional compensation can be awarded, the subcontractor may later have difficulty establishing its right to payment.

The practical lesson: Before performing work outside the original scope, determine what the contract requires for authorization.

Written vs. Verbal Change Orders

One of the most common sources of construction disputes is the verbal change order.

Construction projects move quickly. Owners, contractors, architects, engineers, and subcontractors may communicate constantly by phone, email, text message, or in the field. It can be tempting to treat a verbal instruction as sufficient and address the paperwork later, but that approach creates risk. A contract may require changes to be documented in writing. It may also specify who has the authority to approve a change. Even where a verbal modification may potentially be enforceable under applicable law, proving what the parties agreed to can be difficult after the work has been completed.

Who Has Authority to Approve a Change?

Another important question is who actually has authority to authorize a change.

Construction projects frequently involve multiple decision-makers. An owner may have an architect or construction manager. A general contractor may have project managers and superintendents. A subcontractor may receive instructions from several people on the project.

The fact that someone working on the project requests additional work does not necessarily mean that person has authority to modify the contract.

Before proceeding with a significant change, parties should understand:

• Who is authorized to approve changes?
• Does the contract require approval from the owner?
•  Can a project manager or superintendent authorize additional work?
•  Does the subcontract require the general contractor’s written authorization?
•  Is approval required before the work begins?
• Does the contract establish a specific process for pricing or documenting the change?

Change Orders and Additional Costs

A change in scope frequently means a change in price.

A change order should therefore identify how the contract price will be adjusted. Depending on the contract, the adjustment may be based on:

• A lump-sum price
• A unit price established in the contract
• Time and materials
• Agreed labor and material rates
• Another pricing method established by the parties’ agreement

The parties should also consider costs that may not be immediately apparent.

For example, additional work could result in:

• Additional labor
• Material costs
• Equipment expenses
• Subcontractor costs
• Extended supervision
• Additional project management costs
• Costs associated with delays or project extensions

A contractor should be cautious about simply performing additional work and assuming that the final invoice will resolve the issue. If the parties disagree about the applicable pricing method, the dispute may become significantly more difficult to resolve after the work has been completed.

Change Orders Can Affect the Project Schedule

A change order is not necessarily just about money.

Additional or modified work may affect the time required to complete a project. An owner may request substantial additional work, for example, without realizing that the request will require additional labor, material lead times, or coordination with other trades.

For that reason, a change order should address whether the change affects the project’s completion date or other contractual milestones.

Contractors should identify schedule impacts as soon as they become apparent. Owners, meanwhile, should understand that changes to the scope of work may have corresponding effects on the project schedule.

Failing to address the time impact of a change can create a second dispute later, particularly if the project is completed after the original contractual deadline.

Documentation Is Critical

Good documentation is one of the most effective ways to reduce change-order disputes.

A strong change-order record should establish:

1. What changed
2. Why the change was necessary
3. Who requested the change
4. Who authorized the change
5. How the contract price will change
6. Whether additional time is required
7. When the change was authorized
8. What supporting documents establish the cost and schedule impact

Documentation should not stop with the change order itself. Parties should also maintain relevant emails, meeting minutes, photographs, revised plans and specifications, field reports, invoices, time records, delivery records, and other project documentation.

Telephone conversations about significant changes should also be documented. A brief follow-up email confirming the substance of a conversation can create a much cleaner record than relying on everyone’s recollection months later.

What Happens When a Change Order Is Disputed?

A dispute may arise before the work begins, while the work is being performed, or after the project is completed.

Common disputes include disagreements over:

• Whether the work was outside the original scope
• Whether the change was properly authorized
• Whether the proposed price is reasonable
• Whether the contractor is entitled to additional compensation
• Whether the change justified additional time
• Whether the owner caused a delay
• Whether the contractor properly documented its costs
• Whether a subcontractor was authorized to perform the additional work

The first place to look is the contract itself.

The parties should review the change-order provisions, notice requirements, pricing provisions, dispute-resolution procedures, and any provisions addressing delays or unforeseen conditions.

Importantly, parties should not assume that performing the work first and negotiating the price later will eliminate the problem. Depending on the contract and applicable law, failure to follow contractual procedures can affect a party’s ability to recover additional compensation.

Change Orders and Subcontractors

Change orders can become particularly complicated when multiple tiers of contractors are involved. An owner may authorize additional work with the general contractor, while the general contractor must separately obtain pricing and authorization from one or more subcontractors. 

That creates an important distinction:

An owner’s approval of a change does not necessarily resolve the subcontractor’s entitlement to additional compensation.

The general contractor and subcontractor must also consider the terms of their own agreement, including provisions concerning written authorization, notice, pricing, documentation, and payment.

Subcontractors should be especially cautious about performing significant extra work based solely on informal instructions from a superintendent or other project representative. If additional work is requested, the subcontractor should determine whether the person making the request has authority to approve the change and whether the subcontract requires written notice or authorization before the work begins.

Common Change Order Mistakes

Many change-order disputes could be avoided by addressing the issue before the additional work is performed.

Common mistakes include:

Performing extra work without written authorization

A contractor may believe that everyone understands the change, only to discover later that the owner disputes the additional charge.

Failing to identify the price impact

A change order that says work will be added but does not clearly establish how the contract price will change can leave an important monetary issue unresolved.

Ignoring schedule impacts

Additional work can affect completion dates, but parties sometimes focus exclusively on cost and fail to document the corresponding time impact.

Assuming anyone on the project can approve changes

Project personnel may provide instructions without having contractual authority to modify the agreement.

Waiting until the end of the project to document changes

Reconstructing months of project changes after the fact is far more difficult than documenting them as they occur.

Failing to preserve supporting records

Labor records, material invoices, photographs, correspondence, and other documentation may become critical if the parties later disagree about the cost or necessity of a change.

Best Practices for Owners and Contractors

Owners and contractors can reduce the risk associated with change orders by establishing a consistent process from the beginning of the project.

Before work begins:

• Review the contract’s change-order provisions
• Identify who has authority to approve changes
• Establish how changes will be priced
• Understand notice and documentation requirements

When a change is proposed:

• Clearly identify the change in scope
• Determine why the change is necessary
• Evaluate the cost impact
• Evaluate the schedule impact
• Obtain the required authorization
• Document the agreement before proceeding whenever possible

After the change is approved:

• Maintain the executed change order with the project records
• Track labor and material costs
• Preserve relevant correspondence and project documentation
• Update schedules and project budgets as necessary
• Make sure subcontractors receive appropriate documentation and authorization

When Should You Involve a Construction Lawyer?

Most routine project changes do not require an attorney.

However, legal guidance can become particularly valuable when a proposed change involves substantial additional costs, disputed responsibility, significant delays, contract interpretation, or a disagreement over whether work was authorized.

An attorney can review the governing contract, evaluate the applicable notice and change-order requirements, assess the parties’ rights and obligations, and help address a dispute before it escalates into litigation.

For contractors and owners, the goal is not simply to document a change after a disagreement develops. The goal is to create a clear record before the disagreement develops.

The Bottom Line

Change orders are a normal part of construction, but they should not be treated casually. A seemingly simple change in the field can affect the project’s scope, cost, schedule, and ultimately the parties’ contractual rights.

A practical approach is straightforward: follow the contract, document changes promptly, confirm who has authority to approve them, and address both cost and schedule impacts before the work proceeds whenever possible.

Harpst Becker, LLC is here for your company’s legal needs. If you have questions or need further information, please feel free to contact a member of our team.

 

Effective September 17, 2026, Ohio Senate Bill (“S.B. 262”) establishes new requirements for identifying changes made to certain industry-standard published construction contract forms used for public construction projects. The legislation amends several provisions of the Ohio Revised Code, including R.C. 9.334, R.C. 153.12, R.C. 153.501, R.C. 153.503, and R.C. 153.693. The new requirements are intended to make it clear when a public construction contract departs from the language of an industry-standard form.

S.B. 262 applies when an applicable industry-standard published construction contract form is used and the form is modified. Industry-standard forms may include, for example, commonly used construction documents published by organizations such as the American Institute of Architects (AIA), ConsensusDocs, and the Engineers Joint Contract Documents Committee (EJCDC).

Under the amended provisions, when an applicable industry-standard form is used, alterations must be identified in one of several specified ways. Changes may be shown by striking through and underlining modifications to the original language, by cross-referencing supplemental conditions, or by including supplemental conditions that identify the section or sections of the standard form being altered.

The new requirements apply to several types of public construction contracts and related arrangements. Amended R.C. 9.334 addresses construction management contracts involving construction managers at risk. Amended R.C. 153.12 addresses certain public improvement contracts using an industry-standard published construction management contract form. Amended R.C. 153.501 addresses certain contracts and subcontracts involving construction managers at risk, design-build firms, and general contracting firms. Amended R.C. 153.693 addresses design-build services contracts. S.B. 262 also requires applicable rules adopted by the Ohio Facilities Construction Commission (“OFCC”) to include similar requirements for prescribed industry-standard contract and subcontract forms. The legislation does not apply to Ohio Department of Transportation contracts for road, highway, or bridge projects.

The consequences of failing to properly identify a modification are significant. Under the amended provisions, an alteration that is not identified in accordance with the statutory requirements is void and without effect, and the original language of the industry-standard forms governs. The original language of the standard form prevails instead. As a result, a modification that the parties intended to include in a contract may not be enforceable if it was not identified in the manner required by the statute.

Contractors and other businesses involved in Ohio public construction projects should review the entire contract package rather than relying solely on the name of a familiar industry-standard form. Supplemental conditions, addenda, and project-specific provisions may modify the standard language. Those modifications should be reviewed to determine whether they are clearly identified and incorporated into the contract as required.

Public authorities, construction managers at risk, design-build firms, and general contracting firms using applicable industry-standard forms should also review their contracting procedures to account for the new requirements. The OFCC is required to adopt rules addressing the use of prescribed industry-standard contract and subcontract forms, including requirements for identifying alterations to those forms.

S.B. 262 took effect September 17, 2026. Businesses involved in Ohio public construction should be aware of the new requirements when preparing, reviewing, and negotiating applicable construction contracts.

Read the full text of Senate Bill 262 on the Ohio Legislature website.

This document is provided for informational purposes only and should not be relied upon as legal or tax advice.

Harpst Becker is pleased to congratulate five of its attorneys recognized in the 2027 Ohio Super Lawyers® and Rising Stars® lists. John W. Becker, Todd A. Harpst, Nicholas J. Horrigan, and Joseph R. Spoonster were selected to the 2027 Ohio Super Lawyers® list, while Haley M. Walker was selected to the 2027 Ohio Rising Stars® list.

The attorneys were recognized across a range of business-focused practice areas, including construction litigation, business litigation, employment, real estate, intellectual property litigation, and general civil litigation. Together, the attorneys’ recognitions span several areas of law in which Harpst Becker attorneys represent businesses and other clients.

According to Super Lawyers®, no more than 5% of attorneys in each state are selected to its Super Lawyers® list, while no more than 2.5% are selected to its Rising Stars® list. Super Lawyers®’ selection process includes nominations, independent research, peer evaluations, and additional review.

2027 Harpst Becker Super Lawyers® and Rising Stars®

John W. Becker — Super Lawyers®

Recognized Practice Areas: Business Litigation, Intellectual Property Litigation, Real Estate

Todd A. Harpst — Super Lawyers®

Recognized Practice Areas: Construction Litigation, Employment & Labor

Nicholas J. Horrigan — Super Lawyers®

Recognized Practice Areas: Construction Litigation, Business Litigation

Joseph R. Spoonster — Super Lawyers®

Recognized Practice Area: Construction Litigation

Haley M. Walker — Rising Stars®

Recognized Practice Areas: Business Litigation, Construction Litigation: Business, Civil Litigation: Defense, Employment Litigation: Defense, General Litigation

Recognizing Five Harpst Becker Attorneys

Harpst Becker congratulates John W. Becker, Todd A. Harpst, Nicholas J. Horrigan, Joseph R. Spoonster, and Haley M. Walker on their recognition in the 2027 Ohio Super Lawyers® and Rising Stars® lists.

The attorneys’ recognitions span several areas of litigation and business law in which the firm’s attorneys represent businesses and other clients.

Harpst Becker is pleased to announce that six of its attorneys have been recognized in the 2027 edition of The Best Lawyers in America®. The attorneys received recognition across several practice areas, including commercial litigation, construction, insurance, employment, and professional malpractice.

Christine M. Garritano, John A. Murphy, Jr., John W. Becker, Joseph R. Spoonster, Nicholas J. Horrigan, and Todd A. Harpst were each recognized for their work in one or more practice areas in the 2027 edition.

2027 Best Lawyers Honorees

Christine M. Garritano

Christine M. Garritano was recognized in the 2027 edition of The Best Lawyers in America® in Commercial Litigation, Construction Law, and Litigation–Construction.

John A. Murphy, Jr.

John A. Murphy, Jr. was recognized in Commercial Litigation, Insurance Law, and Litigation–Insurance.

John W. Becker

John W. Becker was recognized in Commercial Litigation, Litigation–Insurance, and Professional Malpractice Law–Defendants.

Joseph R. Spoonster

Joseph R. Spoonster was recognized in Commercial Litigation and Construction Law.

Nicholas J. Horrigan

Nicholas J. Horrigan was recognized in Commercial Litigation.

Todd A. Harpst

Todd A. Harpst was recognized in Construction Law, Litigation–Construction, and Litigation–Labor and Employment.

About Best Lawyers®

The Best Lawyers in America® recognizes attorneys for professional excellence in specific areas of law. Recognition is based on a peer-review process in which attorneys evaluate the professional abilities of other lawyers practicing in the same areas and geographic regions.

Harpst Becker is proud to have its attorneys recognized by The Best Lawyers in America® and congratulates this year’s honorees on this professional distinction.

Effective April 9, 2025, Ohio has enacted its first Anti-SLAPP statute, codified at R.C. 2747.01 to 2747.06. “SLAPP” stands for Strategic Lawsuit Against Public Participation. These types of claims are often filed by individuals, businesses, or organizations in response to speech or expressive activity—such as public criticism, online commentary, or media reporting—that they allege has caused reputational or other harm. Commonly, these lawsuits take the form of defamation or similar tort claims. Defendants are frequently journalists, advocacy groups, public commentators, or private individuals engaging in speech on matters of public interest. In some instances, the litigation may also serve to discourage further commentary or participation in public discourse by the defendant or others.

Ohio’s new statute is based on the Uniform Public Expression Protection Act (UPEPA) and is intended to provide an early mechanism for the dismissal of such claims when they arise from a person’s communication on a matter of public concern or participation in a governmental proceeding. The law allows a defendant to file a motion for expedited relief within 60 days of being served. Once such a motion is filed, the case between the moving and responding parties is stayed, including discovery and other proceedings.

The court must then hold a hearing within 60 days. If it finds that the law applies and the claim does not meet certain threshold legal standards—such as failing to state a cause of action or lacking a prima facie showing of the necessary elements—it may dismiss the claim with prejudice. In that case, the moving party is entitled to an award of attorney’s fees, court costs, and litigation expenses. Denials of such motions are immediately appealable, and if a court determines that a motion was frivolous, it may award fees to the responding party.

The statute applies to civil actions filed on or after April 9, 2025, and includes exceptions for certain categories of claims, including actions against government entities, enforcement actions involving public health or safety, and claims related to bodily injury or commercial transactions. While views differ on the broader impact of such statutes, Ohio’s law establishes a defined process for resolving claims that implicate public expression rights at an early stage of litigation.

Harpst Becker, LLC is here for your company’s legal needs.  If you have questions, or need further information, please feel free to contact a member of our team.

This document is provided for informational purposes only and should not be relied upon as legal or tax advice.

 

 

Harpst Becker Member, Joseph Spoonster, recently argued and won an important decision benefiting commercial property owners in eminent domain cases.  The Fifth District Court of Appeals recently ruled that property tax valuations are admissible evidence in an eminent domain case to assist the jury in its sole function – the determination of compensation due the property owner when the government takes property for public use.  This decision levels the playing field with public agencies by allowing  owners to present all evidence that they feel should be taken into consideration in eminent domain cases, which is especially critical when the government offers compensation that is hundreds of thousands of dollars below the tax value.  Previously, there was no controlling precedent in Ohio permitting this evidence in an eminent domain case, and the conventional wisdom was – as the trial court ruled – not to allow it.  See, City of North Canton v. Julius Brown, LLC, Case No. 2024CA00030.

In Julius Brown, The City of North Canton put a zero dollar value on the commercial buildings it tore down for a road widening project.  The property owner did not agree that their buildings had no value and the case proceeded to trial.  The City’s zero dollar value was in stark contrast to the $45 per square foot value opined to by the owner’s expert and the County Auditor’s valuation of the buildings.  The difference in tax values of the properties with and without the buildings was significantly different at over $300,000.  To establish the value, continued utility of the buildings, and impeach the City’s appraiser on the zero value opinion, the owner sought to introduce testimony and tax records from the County Auditor showing that the buildings had been valued by the County Auditor at significantly higher than zero and collected tax based on that higher value.  The owner also sought to cross examine the City’s appraiser with this evidence and the owner sought to testify that he was charged and paid taxes based on the higher building values.  The owner’s position seemed logical – if one government entity is going to put a high value on the property for taxation purposes, how can another government entity claim that same property has no value when it comes to the government’s obligation to pay compensation for taking it? At the very least, the jury should be given this information and allowed to consider it.  But the trial court refused to admit any of this evidence and the jury came back with an award of zero for the buildings, which wasn’t surprising.

In an eminent domain case, neither party has the burden to prove what property’s value is for appropriation purposes.  Instead, the jury is tasked to determine what compensation the government will have to pay the property owner when it takes buildings and land for a public purpose.  If a government can keep evidence establishing a high value from the jury, then it is more likely the jury will come back with a low value.  In this case, the evidence was that the County Auditor put a value of over $300,000 on the buildings and that the owner paid taxes based on that value.  The trial judge said the jury was not allowed to know this, and even worse – the City’s appraiser could tell the jury the buildings added no value without allowing cross examination on the contrary tax values.

If the County Auditor’s valuation is the proper standard by which a property owner should pay money to the County, that same valuation should not be ignored when the owner is called upon to forfeit property for public use.  The Court of Appeals agreed and held the trial court committed reversable error by failing to admit the property tax valuation evidence and keeping that information from the jury.  The Court of Appeals also ruled that the owner had the right to use that evidence to cross examine the City’s appraiser.  With this decision, the Fifth District Court of Appeals now joins the large growing minority of courts that allows tax valuations as reliable and probative evidence of value in eminent domain cases and the owner will be able to present this evidence at a new trial.

Harpst Becker, LLC is here for your company’s legal needs.  If you have questions, or need further information, please feel free to contact a member of our team.

This document is provided for informational purposes only and should not be relied upon as legal or tax advice.

 

Corporate Transparency Act BOI Report Whiplash – Report Deadlines are Suspended Again

We previously reported that a federal judge in Texas issued a nationwide injunction blocking the federal government from enforcing the anti-money laundering law that required most small business owners to file beneficial ownership reports with the Financial Crimes Enforcement Network (“FinCEN”) under the Corporate Transparency Act.  The government appealed that ruling and the US Court of Appeals for the 5^th Circuit overturned the injunction on December 23 saying that the law can now be enforced.  FinCEN then issued an order giving business owners until January 13 to file their reports.   But late last week a different panel of the US Court of Appeals for the 5^th Circuit reinstated the injunction in an after-hours ruling.    See https://www.fincen.gov/boi for more information.

FinCEN published the following statement after this court decision:

In light of a recent federal court order, reporting companies are not currently required to file beneficial ownership information with FinCEN and are not subject to liability if they fail to do so while the order remains in force. However, reporting companies may continue to voluntarily submit beneficial ownership information reports.

As of this moment, BOI reports are not legally required.  But as with the prior court rulings, that can change with little notice and if it does, the government has a track record of imposing short deadlines to comply.  The current ruling is only temporary until the Court of Appeals considers the merits of the case and ultimately decides whether the Corporate Transparency Act is unconstitutional.  If the Court rules that this law is unconstitutional, the injunction will become permanent; but if it upholds the law, then the injunction will be lifted and the requirement to file reinstated.  It is up to you whether you want to voluntarily file your report in the meantime or continue to monitor the situation.

The business practices team at Harpst Becker, LLC is here for your company’s legal needs.  If you have questions, or need further information, please feel free to contact a member of our business practices team: