Construction contracts generally give the contract administrator the power to issue instructions to the contractor. These instructions can be called ‘contract administrator’s instructions’ or ‘architect’s instructions’ (AI's). We have used the terms ‘architect’ and ‘architect’s instruction’ below, but they could easily be replaced with ‘contract administrator’ and ‘contract administrator’s instruction’.
Broadly, Instructions may be given:
- To vary the works.
- To postpone the works.
- To remedy workmanship, goods or materials which are not in accordance with the contract.
- To sanction a variation made by the contractor.
- In relation to the expenditure of provisional sums.
- To open up work for inspection.
- To carry out tests.
- To exclude persons from the site.
The contractor must comply with the instructions within certain limitations. The contractor has the right to ‘reasonably object’ to an instruction, and instructions can only be given as empowered by the contract. On receipt of an instruction, the contractor may ask the architect to inform them which conditions empower them to make that instruction. Disagreement about the validity of an instruction may result in a dispute being deemed to have arisen, and the dispute resolution procedures of the contract will then come into force.
If an instruction constitutes a variation, then the contractor may be required to give a variation quotation, and the works described in the instruction will not begin until the architect has confirmed their acceptance of the quotation.
If the contractor does not follow an instruction, the architect may be required to issue a 'notice to comply' to the contractor. If they still fail to comply, the architect can instruct others to carry out the work and the contractor will be liable for any additional costs incurred. It is important therefore that such costs are properly recorded, and if possible a range of quotes obtained.
Contracts can be vague about the nature of instructions, other than that they should be given in writing. They should also be dated and signed. There are various instruction pro-forma that can be purchased. It is sensible to send an instruction by recorded delivery, or to confirm its receipt in the minutes of subsequent meetings.
If an instruction is given verbally, either the architect should subsequently confirm the instruction in writing, or the contractor should confirm it in writing, and unless the architect tells the contractor that the instruction is incorrect, then the contractor’s description of the instruction will stand. See Confirmation of verbal instruction (CVI) for more information.
Where an instruction is given to open up work or to carry out tests, costs incurred will be added to the contract sum unless they were provided for in the contract bills, or if the work opened up or tested proves to be defective. If such an instruction is given because other similar work, materials or goods were defective, then no addition will be made to the contract sum as long as the instruction is reasonable.
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