agchouston.org Summer2026Cornerstone19 the field. We’re accustomed to “measuring twice” before cutting; that same mindset should apply to project communica- tions, especially when contractual notice requirements are involved. Authority Problems: Who Can Bind the Company Through a Text? Authority disputes aren’t new to con- struction, but digital communication has made them more complicated. Decades ago, project communications were gener- ally formal and sent by individuals with clear authority. Today, informal messaging often blurs those lines. Did everyone included in the commu- nication actually have authority to bind their companies? In a recent Texas case, an owner’s project manager authorized a partial credit for eliminated work, but an appellate court ruled there was no evidence he had authority to bind his employer. A superintendent may text a subcon- tractor, “Go ahead and proceed; we’ll issue a change order later.” If payment is later denied, the subcontractor may argue the superintendent had apparent authority. Courts may then examine job titles, project responsibilities, prior course of dealing, whether the contractor allowed the individ- ual to issue directives, and whether reliance on the message was reasonable. Another important question is whether the communication included all necessary stakeholders. In the rush to make deci- sions, critical parties are sometimes left out of group chats or text threads. Ensuring the right people are involved in communica- tions can help avoid disputes later. Text Messages as Evidence in Claims and Litigation Text messages and chat threads have become central evidence in construction disputes. In many cases, they provide the clearest timeline of events by cap- turing real-time reactions, directives and acknowledgments. Courts increasingly rely on these mes- sages to determine when contractors noti- fied owners of delays, whether extra work was approved, whether cost impacts were discussed, or whether an owner interfered with the contractor’s means and methods. However, informal messages can also damage a contractor’s position. A super- intendent’s casual, “we’ll take care of it” text may later be interpreted as a waiver of a claim. A foreman’s message blaming weather for delays may contradict a later claim involving compensable impacts on the critical path. The discovery burden is also sub- stantial. Parties may be required to preserve and produce text messages, metadata and chat logs, which can become expensive and time-consuming. Group chats involving mixed parties create additional complications. While applications like WhatsApp and Slack are generally recoverable, recovery often depends on personal device settings and backup practices. The possibility of losing this informa- tion altogether is also very real. Chats may be deleted, groups dissolved or devices replaced. Failure to preserve relevant communications can lead to adverse inferences in litigation. When Informal Messages Override Contract Procedures Repeated reliance on informal commu- nication can effectively modify or waive contractual requirements. If an owner consistently accepts text- based notice, it may later be prevented from insisting on formal notice proce- dures. Likewise, if a contractor routinely receives directives through texts and per- forms the work, an owner may ultimately be bound by those directives even when formal change order procedures were never followed. Courts often look closely at the par- ties’ course of performance. If the project was effectively managed through texts and chats, those communications may become the operative method of project administration regardless of what the con- tract technically requires. In practice, the parties’ conduct can rewrite the contract. Best Practices for Contractors Contractors can reduce risk by imple- menting clear communication policies. Field personnel should understand that texts and chats can carry legal consequences. Messages should remain professional, accurate and limited to factual information. When responding informally, con- tractors should use language such as “subject to formal approval” or “please submit through the contract process.” Understanding and following the contract process is never a bad idea. Contract language should also reflect the realities of modern communication. If projects will rely heavily on digital mes- saging, contracts should clearly define how informal communications will be treated. Preservation policies should ensure text messages and chat logs are retained in a manner consistent with litigation hold obligations. Communication has always been critical in construction, and digital tools can significantly improve project coordi- nation. Texts, chats, shared photos and informal emails help teams communi- cate quickly and efficiently. But with that speed comes the risk of confusion over whether commitments are binding, whether notice requirements have been satisfied, or whether claims are under- mined by offhand comments. Contractors should treat informal communications as part of the official project record and manage them with the same care as formal correspondence. The law is evolving, but the direction is clear: Informal digital messages carry real legal weight, and contractors must adapt accordingly. The law is evolving, but the direction is clear: Informal digital messages carry real legal weight, and contractors must adapt accordingly.
