The Instruction That Was Never Confirmed
You are the contract administrator on a JCT-style building contract. Three weeks ago the main contractor's site manager asked you verbally, on site, to confirm a variation to move a partition wall. You said you would 'look into it'. The contractor has now built the wall in the new position and submits a variation claim for £18,500 with a programme delay of 4 days. The contract requires variations to be instructed in writing. Your site diary records the conversation but no written instruction was ever issued. The employer's budget for variations is nearly exhausted.
1. Is the contractor entitled to be paid for the relocated wall? Set out the reasoning.
Read the worked answer
Not automatically. The contract requires written instruction; none was issued. A verbal request to 'look into it' is not an instruction to proceed, and the contractor acted at its own risk.
However, entitlement is not zero by default:
- If the work is genuinely a change to the employer's requirements, the employer has received the benefit.
- Many standard forms allow the administrator to confirm a verbal instruction in writing within a set period; if that window has passed, the position weakens for the contractor.
Reasoning to apply: (1) Was there an instruction? No written one. (2) Did the administrator confirm it in time? No. (3) Has the employer accepted the benefit? Arguably yes. (4) Is there a mechanism to regularise it now? Possibly, by issuing a written instruction/confirmation now, but that admits the change.
Conclusion: the contractor's strict entitlement is weak; a negotiated settlement or a retrospective written instruction is the practical route, not automatic payment.
2. What should you do now, and what would you do differently next time?
Read the worked answer
Now:
- Issue a written response stating no instruction was given and the work was done at the contractor's risk.
- Assess whether the change is actually required by the employer. If yes, consider issuing a written instruction now to regularise it, and negotiate the £18,500 against measured rates rather than accept it wholesale.
- Address the 4-day delay separately: require a delay analysis; a 4-day claim needs a critical-path link, not assertion.
- Record everything in the site diary and correspondence.
Next time:
- Never say 'I'll look into it' on site without following up in writing within 24 hours.
- Use a standard instruction form; if you are unsure, issue a 'not an instruction' note.
- Keep a variation register so budget is visible before commitments are made.