Work gets instructed on construction sites in every way except the one the contract describes. It is raised in a meeting, mentioned on a walk round, confirmed in an email that says something slightly different, and done because the programme will not wait. Establishing what was contractually instructed is the starting point of most variation claims and part of a contractual entitlement review.
The question is not whether the work was asked for. It usually was. The question is whether what happened amounts to an instruction under the contract, given by somebody empowered to give one, in a form that engages the valuation machinery.
What the contract usually requires
That instructions are given by a named person or role, frequently the contract administrator, the employer’s agent or the project manager depending on the form.
That they are in writing, or that oral instructions are confirmed in writing within a stated period, sometimes by either party.
And that they relate to something the contract empowers that person to instruct. An instruction to do something outside the scope of the power may not be effective as an instruction at all.
Those three requirements are the test. Work done outside them has been done, but its contractual status is a separate matter from its existence.
Who can actually instruct
Fewer people than site practice suggests. A clerk of works, a design team member or an employer’s representative may have no power to instruct change even though they are plainly in charge of something.
Employers themselves frequently cannot instruct directly under traditional forms, where the power sits with the contract administrator. That surprises employers regularly.
Delegation is possible under most forms but it usually has to be done formally and notified. Assumed delegation, where somebody has simply been acting as though they can instruct, is a weaker foundation.
The confirmation mechanism
Most forms recognise that oral instructions happen and provide a way of regularising them: confirmation in writing, within a period, with the other party able to object.
Used properly this is an efficient mechanism. The contractor confirms what it was told, the recipient corrects it if wrong, and the position is fixed while everybody remembers.
Used late or not at all, it leaves a gap that is difficult to close afterwards. A confirmation sent eight months later is not performing the same function.
The practical rule is to confirm the same week, in plain terms, naming who gave the instruction and when.
Work done without an effective instruction
The position varies by contract and by circumstance, which makes it unwise to generalise. What is consistent is that the contractor is in a weaker position than if the instruction had been given properly.
Arguments based on acquiescence, on benefit received or on the conduct of the parties are available in principle and are slower, less certain and more expensive than a piece of paper would have been.
Where the work was substantial, that uncertainty sits on a large sum. Where it was minor, the cost of arguing frequently exceeds the value.
Instructions that are not variations
Not every instruction changes the scope. Instructions to open up work, to remove defective work, or to comply with existing obligations are not variations and do not carry payment.
Treating all instructions as variations is a common contractor error, and it damages credibility on the ones that genuinely are.
Equally, treating a genuine variation as an instruction to comply with the contract is a common employer error, and it produces disputes that could have been priced for a fraction of the eventual cost.
The record that actually helps
A short written confirmation stating what was instructed, by whom, on what date, and under which clause if that is known. Four facts and a date.
Kept in a register rather than scattered through correspondence, so that the position across the project can be seen at a glance.
And accompanied, where the work has a cost or time effect, by notification under whichever provision applies. The instruction and the claim are separate steps.
What to do when it has already happened
Establish the facts before the arguments. What was said, by whom, when, and what was done in response. A sequence with dates is worth more than an assertion about authority.
Look at what the other side did afterwards. Instructions that were acted on, inspected, valued or referred to in correspondence frequently leave a trail that assists.
And separate the strong cases from the weak ones. A claim containing twenty instructed items, five of which are properly documented, is better run as five than as twenty.
The instruction that changes something else
An instruction to vary one element frequently affects work that was not varied: sequence, access, productivity on adjacent activities. That knock on effect is part of the valuation and is routinely left out of it.
It has to be identified at the time, because the evidence for it is the record of what the other work was doing before and after. Reconstructed afterwards it becomes an assertion.
Raising it when the instruction arrives also gives the other side the chance to instruct differently, which is frequently cheaper for everybody than paying for the consequence.
Preventing the whole category
Agree at the start who can instruct, and tell the site team. Most of these disputes begin with somebody in good faith taking direction from a person without the power to give it.
Confirm everything in writing the same week, as routine rather than as a challenge. On projects where this is normal practice nobody reads anything into it.
That discipline is cost control and variations work and it removes most variation disputes before they form. Where they have already formed, the narrower services under claims and dispute advisory deal with them as defined pieces of work.
Not sure whether the contract gives you a route?
A contractual entitlement review tests whether the contract gives a right to additional payment or time for what happened, before anybody argues about what it is worth.