Scope creep is one of the most common and, more importantly, costly challenges in commercial and public construction projects. When work expands beyond the original contract without proper documentation, contractors, owners, and subcontractors are left exposed to disputes, delays, and financial losses. Understanding how scope creep arises, and how Virginia courts and others in the region treat it, can help you avoid costly litigation and keep your project on track.

What Scope Creep Looks Like in Practice

Scope creep typically occurs when work expands beyond the four corners of the contract. Examples include:

• Owners asking for design changes mid-project.
• Contractors performing extra work without formal approval.
• Unscheduled modifications that push back completion dates.
• Subcontractors directed by project managers to complete tasks outside the agreed scope.

Often these additions begin informally: an architect suggests a revision on-site, or an owner emails about a small change. Without proper documentation, these “minor” changes accumulate into significant disputes.

Why Scope Creep Leads to Disputes

Disagreements usually arise when one party believes additional work should be compensated, while the other insists it was included in the original agreement. Courts in Virginia, Maryland, and D.C. have repeatedly emphasized that what matters most is the written contract and whether the parties followed it.

For instance, in Patriot Construction v. VK Electrical (Md. Ct. Spec. App. 2023), a subcontractor was asked by the project manager to perform work beyond its contract. No signed change order was issued. When the general contractor refused payment, the subcontractor sued. The court held the subcontractor was entitled to payment, finding that the project manager’s conduct created “apparent authority” to approve the change. The lesson is clear: even when changes are verbally authorized, courts may impose liability if the contractor acted reasonably based on the manager’s authority.

Virginia courts also look closely at contract compliance. In Premier Restorations, LLC v. Barnes (Norfolk Cir. Ct. 2023), a homeowner signed multiple change orders but refused to make the required prepayments. The contractor filed a mechanic’s lien, and the court upheld it, noting that Barnes had requested, reviewed, and accepted the extra work orders. The ruling illustrates that signed change orders are binding on both sides: owners must pay as agreed, and contractors must enforce payment provisions promptly.

The Importance of a Clear Project Scope

The best defense against scope creep is a contract that leaves no room for ambiguity. Virginia law is clear: if an express contract exists, the parties’ rights and obligations are determined strictly by its terms. Courts will not rewrite the bargain after the fact.

A comprehensive construction contract should include:

• Detailed specifications and drawings – so all parties share the same understanding.
• Project timelines and milestones – with clear definitions of delays and extensions.
• Payment schedules and triggers – tied to measurable progress.
• Procedures for change orders – specifying who can authorize changes and how they must be documented.

In SEG Props. v. NTC Mazzuca Contracting (Va. Ct. App. 2025), the owner’s representative routinely directed work outside the contract scope under a “price-and-proceed” practice, despite a clause requiring written change orders. The court found that the owner had waived the strict requirement by its conduct. While this outcome favored the contractor, it underscores the danger of inconsistent practices. If a contract requires signed orders, both parties should follow the rule or risk losing the protection it provides.

Best Practices for Managing Changes

Require Written Change Orders

Every contract should specify that no additional work will be compensated without a written, signed change order. Virginia courts generally enforce these clauses. On public projects, Virginia Code § 2.2-4309 limits change orders on fixed-price contracts to 125% of the original contract value without additional approval.

Document Everything

Keep a change-order log recording the date, description, pricing, and signature for every modification. Emails and texts may serve as preliminary evidence, but only formal documentation secures payment rights. Incomplete or missing records can cost contractors tens of thousands of dollars in uncollected extras.

Specify Authority

Identify in the contract who may authorize changes – usually the owner or architect. Without clarity, unauthorized field directions can cause disputes. The Patriot Construction case shows how even unauthorized verbal instructions may bind a company through apparent authority. To avoid this, train staff never to proceed with changes until written approval is obtained.

Communicate Early and Often

Promptly notify all parties of potential changes, including cost and schedule impacts. Follow up verbal discussions with a written confirmation. This not only reduces misunderstandings but also creates evidence if a dispute arises.

Collaborative Strategies to Avoid Litigation

Managing scope creep does not have to be adversarial. Contractors, subcontractors, and owners can reduce disputes through transparency and collaboration:

• Hold regular scope meetings to review pending changes.
• Use contingency allowances in contracts to absorb small modifications without renegotiation.
• Maintain open books by sharing cost estimates for proposed changes.
• Follow formal claims procedures on public projects, such as notice requirements under the Virginia Public Procurement Act.

Even when disputes arise, collaboration helps preserve relationships and keeps projects moving forward while legal issues are resolved.

Conclusion

Scope creep can seem inevitable in construction, but disputes do not have to be. The consistent theme in recent Virginia and regional cases is that courts will hold parties to the procedures set out in their contracts or to the practices they adopt during performance. Contractors and owners who insist on written change orders, maintain clear documentation, and communicate transparently are far better positioned to avoid litigation and protect their investments.

If you are facing a dispute—or want to avoid one before it starts—please contact Stephen Caruso at (703) 284-7242 or scaruso@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.