No Change Order Leaves Contractor Liable for Excess Dirt at Construction Site

D2 Excavating, Inc., agreed to an excavation contract with Thompson Thrift Construction on a site which Thompsons claimed to require no import or export of dirt. In the contract, D2 agreed they’d visited the site and examined it to determine the appropriate amount of work required. Due to heavy rains and an eager client, D2 did not physically examine the site, but rather relied on a computer modeling program to determine how much work the site would require. In the end, site work by other contractors produced more dirt than D2 needed which required D2 to remove some dirt. D2 became concerned Thompson would not pay for the extra work and eventually stopped working when the site was 98.6% complete. The Fifth Circuit Court of Appeals reversed the district court’s ruling that Thompson owed D2 for the excess work because the contract explicitly said it would not cover exporting or importing of dirt to the site. Responsibility for recognizing the amount of dirt needed at the site lay solely on D2. Thompson, however, was responsible for 100% of the contract price because his mismanagement prevented D2 from completing the entire project. Contractors and Sub-Contractors need to be aware of the work they are required to complete is covered in their contracts.  If not, a written change order should be provided as a condition of doing work outside the contract before the work is begun. Read more about the case here.