Last edited 03 Aug 2016

Confirmation of verbal instruction

Construction contracts generally give the contract administrator the power to issue instructions to the contractor.

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. They have the right to ‘reasonably object’ to an instruction, and instructions can only be given as empowered by the contract.

Generally, instructions must be made formally, in writing, following a procedure set out in the contract. However, it is common for contracts to allow instructions to be given verbally, for example during a meeting, a site visit, or in an emergency situation. In this case, either the contract administrator should then confirm the instruction in writing to the contractor, or the contractor should confirm the instruction in writing to the contract administrator. If the receiving party does not dissent from the written confirmation, then the instruction will take effect.

This confirmation is referred to as a confirmation of verbal instruction (CVI) or an oral confirmation sheet. The contract should set out the exact procedures and the timescales for issuing such an instruction and dissenting from it.

Contracts can be vague about the nature of such confirmations, other than that they should be given in writing. Generally they should include:

Details of who it is issued by and who it issued to.
The date.
Details of the contract that permits the instruction.
The number of the CVI.
Details of the instruction.
The signature of the party issuing the CVI.

It is sensible to send an instruction by recorded delivery, or to confirm its receipt in the minutes of subsequent meetings. On some projects, there may an automated system in place for capturing and managing CVI’s and other instructions.

If a formal procedure is not followed for confirming verbal instruction, there can be disputes about:

Work that has not been done which the contract administrator believes have been agreed.
Work that the contractor has done but the client does not wish to pay for.
Whether the instruction has been given to the right person, by the right person.
Whether the instruction is allowed under the contract.
Whether it has been properly valued and the value agreed.
Whether the consequences on the programme have been properly considered.
Whether an extension of time should be awarded.

Some contracts may make it a condition precedent to works being carried out that instructions are issued in writing. However, this can put the contractor in a difficult position, and whether to proceed with the works or to wait for a written instruction may be a commercial rather than a legal decision.

It is important that any instruction it is given by the contract administrator, rather than, for example, by the client, otherwise the instruction may constitute a new contract.