Authority comes from the contract
Construction contracts name a person or a role who may issue instructions. On design and build that is usually the employer’s agent. On a traditional contract it is usually the contract administrator. The authority to instruct belongs to that named role and to nobody else, however senior they are and however much they are paying.
This surprises developers regularly, because the developer is the client and the money is theirs. A client can of course direct their agent. What a client cannot usefully do is walk onto site and change the works, because the change has to enter the contract through the door the contract provides.
The same principle applies to who may accept work, agree a value or vary the programme. Contracts allocate those functions deliberately, and the allocation is one of the few parts of a construction contract that is genuinely simple to read. It is worth reading it once, at the start, with the people who will be on site.
What happens when somebody else instructs
The work usually gets done. Site teams are practical, the request came from somebody who appeared to be in charge, and stopping to check authority feels obstructive.
The consequences appear later. The contractor has carried out work outside the contract mechanism, so the valuation route is unclear. The cost arrives as a claim rather than as a valued change, priced by the party that did the work, evidenced by records only they hold. Whether it is recoverable at all depends on the contract and on what was said, which is precisely the argument nobody wants to be having.
The pattern on live sites
Three situations produce most of these. A client visit where a preference is expressed and heard as a direction. A consultant answering a technical query in a way that changes scope. A site meeting where something is agreed, minuted loosely, and never converted into an instruction.
None of these involve bad faith. They involve a gap between how people talk on a project and how the contract expects them to communicate.
Closing the gap
The fix is procedural and it costs nothing. Establish at the start who may instruct, tell everybody including your own team, and route every change through that person. Where the works genuinely cannot wait for a valuation, the instruction should still be issued in writing with the basis of valuation stated in it, so the later conversation is about the rate rather than about entitlement.
Written confirmation after the fact is worth more than nothing but considerably less than an instruction issued at the time. We wrote about the record keeping side of this in verbal instructions on site.
Recording an instruction so it survives
A usable instruction identifies the change, states what is to be done, records the date, and states the basis on which it will be valued. Four elements, one page, issued by the named role.
Where the work cannot wait for the value to be agreed, the basis of valuation stated in the instruction is what preserves the employer’s position. Instructing first and pricing later transfers the whole of the commercial position, because the work is done and the only remaining question is what it was worth.
Site minutes are not instructions and should not be used as a substitute. A minute records that something was discussed. An instruction records that something was directed, by somebody entitled to direct it. Where a project has been running on minutes, the reconciliation exercise usually finds a queue of work that was carried out on the strength of a discussion.
Confirmation of a verbal instruction is worth having and worth having quickly, because the contract usually sets a period within which it operates. [VERIFY: the period for confirming a verbal instruction under the contract edition in use.]
What this means for you
Check who is named in your contract, and check they are actually available in the week that decisions get made. An agent who cannot be reached is a bottleneck that pushes people back into informal instruction.
If your project has been running informally and you suspect there is a queue of unvalued work, the reconciliation is worth doing now rather than at the final account. That work sits inside the employer’s agent appointment, and our scenario on variation claim exposure describes what it usually finds.
One practical habit closes most of the gap on its own. At the end of every site visit where anything was discussed that might change the works, the named person sends a short note the same day confirming what was and was not instructed. Two lines, sent within hours, prevent the reconstruction exercise twelve months later.