A constructive change happens when the owner, the architect or another authorized representative requires work beyond the contract without calling it a change. Common examples: an RFI answer that adds scope, an inspector who insists on a higher standard than the specs, an owner rejecting work that conforms, defective or incomplete drawings that force extra work, or an order to accelerate after denying a valid time extension.
To recover, the contractor usually has to show two things. First, the work actually went beyond what the contract required. Second, the owner (or someone with authority to bind the owner) ordered or caused it. Most contracts also require written notice within a short window, so the owner can decide whether it really wants the change.
Why it matters
Constructive changes are a major source of margin fade because the work gets done before anyone prices it. If nobody logs it, there’s nothing to bill.
Worked example
Illustrative, based on the Riverside sample story: a super finds fire dampers missing from the drawings at six rated penetrations and logs RFI-212. If the architect’s answer had simply said “install dampers” with no change, doing the work would have been a constructive change. Instead it was handled the right way, priced and approved as CO #14 for $86,400: $78,100 of cost (including Summit Mechanical’s $68,000 commitment change) plus $8,300 of markup.
Common mistakes
- Treating RFI responses as free clarifications when they add scope.
- Taking direction from someone without authority to change the contract.
- Missing the written notice deadline.
How os.construction handles it
We’re building RFIs that can open a change event in one step, so added scope gets logged, priced and tracked to a change order from the same record. It’s in development.