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Can a sub contractor bill for change orders that we weren’t aware we’re not included in his original scope of work?

New HampshirePayment Disputes

We had a sub contractor (excavator) do faulty work; he ultimately quit and was aware at the time that we would be back charging him to correct his mistakes. Since then, he has provided us with a large list of “change order” items that we weren’t aware existed until ~20 days after he quit. We are disputing these charges and still planning deducting the back charges from his final payment. We anticipate he will try to put a lien on us for the charges. From our point of view, it is obvious that he is building up his fees to offset our back charges. My question is: is he able to bill is for “extras” that we weren’t aware were considered extras at the time? Had he not quit I don’t believe we would have ever seen a change order list.

1 reply

Jul 10, 2018

That's a great question. As a general matter, mechanics liens are available for those who provide authorized work on an improvement pursuant to their contract. When change orders are not authorized and the amounts for completing those change orders are included in a lien claim, things get dicey for claimants. Proving that a claim has been fraudulently inflated can be a hard task, but the penalties for fraudulent claims are typically very steep for claimants - and reminding a claimant that damages or penalties can come into play is often a good way to ward off improper claims. But, as an initial matter, a claimant may bill for extras - and potentially even lien for them. But whether or not that billing is appropriate or valid is another question entirely, and a claimant creating change orders merely to offset back charges would not seem to be a meritorious claim. Of course, those charges can be disputed and ultimately lead to a more contentious payment dispute. If a lien claim (or some other claim) is filed, the owner and/or contractor will have the opportunity to dispute the payment claim. Often, when a claim is proven invalid, the losing party will be required to pay for attorney fees and expenses incurred to defend against the improper claim.

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