Somebody told you. Nobody instructed you.

Somebody told you. Nobody instructed you

A client's project manager walks the site on a Thursday and asks for the blockwork to be moved half a metre. It is not unreasonable. The foreman does it that afternoon.

Four months later the account is being settled and the half metre appears as a claim. The response takes one line: who instructed that? The answer is a man who was standing on the slab, who does not appear anywhere in the contract, on a day nobody wrote down.

This is the most common way money leaves a construction project. Not a dispute anybody argued and lost — work done in good faith on the say-so of somebody the contract never authorised to ask.

The list of people who can instruct you

Sub-clause 3.5 opens by letting the Engineer issue whatever instructions the execution of the works requires, provided they are consistent with the contract. Then it does something more useful: it closes the list.

You are to take instructions only from the Engineer, from the Engineer's Representative where one has been appointed, or from an assistant who has had the relevant authority delegated under sub-clause 3.4. That is the whole list.

The employer's own project manager isn't on it. Nor is the designer, nor the employer's other contractors, nor the person who signs your certificates unless they happen also to be one of the three. Every one of those people can ask you for something. None of their requests is an instruction, and the difference matters most on the day somebody asks who told you to build it.

It is worth seeing why the list is closed rather than resenting it. The restriction protects the employer as much as you. An organisation that lets any of its staff create liabilities by asking for things on site has no control over its own cost, which is exactly why the contract routes everything through one named channel. The rule is not bureaucracy. It is the reason anybody can forecast anything.

Delegation is a notice, not a job title

Sub-clause 3.4 lets the Engineer hand duties and authority to assistants, and take them back again. The mechanism is what matters here.

It is done by notice to both parties, describing what each assistant has been given. And the delegation has no effect at all until that notice has reached both of them. So the question on site is never whether somebody seems senior. It's whether a notice arrived, and what it said.

Most contractors have never seen one. If you can't produce the delegation notice for the person who has been instructing your team for six months, you have a gap, and it is a gap that only ever gets examined when there is money attached.

Two things the Engineer cannot hand over

The delegation power has limits written into the same sub-clause, and both are worth knowing.

The Engineer can't delegate the authority to act under sub-clause 3.7, and cannot delegate the issuing of a notice to correct under 15.1. Which means the determination machinery from Week 3 — consultation, the forty-two days, the determination itself — belongs to the Engineer personally. An assistant can't decide your claim, however senior.

There is a related protection two sub-clauses along. If the employer wants to replace the Engineer, it must give you at least forty-two days' notice with the replacement's name and experience, and you may object within fourteen days, with reasons.

The notice you send before you start

Now the part of 3.5 that earns its place, and it deals with the instruction that arrives without admitting what it is.

If an instruction says it constitutes a variation, the variation procedure takes over. If it doesn't say so, and you consider either that it is a variation anyway, or that it breaks applicable law, reduces the safety of the works or is technically impossible, then you give a notice to the Engineer with your reasons.

The timing is the whole point. That notice goes immediately, and before you start any work related to the instruction. Not with the monthly application. Not once the work is done and the cost is known. Before.

Start first and you have skipped the mechanism the contract gave you. The work gets done, the record shows you got on with it without demur, and the argument about whether it was a variation is one you now have to win from a much weaker position.

Seven days, and the instruction disappears

Here is the reward for sending it. Once your notice is in, the Engineer has seven days to reply by confirming, reversing or varying the instruction.

If nothing comes back inside those seven days, the instruction is treated as revoked. Not suspended, not disputed — revoked, and you are no longer obliged to do the thing.

If a reply does come, you comply with it and are bound by its terms. Which is a fair trade: you get a decision from somebody with the authority to make one, in writing, within a week.

That makes four separate silences this track has now met, and it is worth seeing them together, because the pattern is not random.

One caution on relying on it. The seven days run from the Engineer receiving your notice, so the notice needs to have gone to the right place in the right form — which is sub-clause 1.3 from Week 1 again, doing the same job in a different corner of the contract. A challenge emailed to somebody's personal address does not start a clock.

Practical insight

Three habits, and the first one takes ten minutes.

Get the delegation notices. Ask the Engineer for the current sub-clause 3.4 notices and keep them where your section engineers can see them. Put the names on the wall of the site office. A team that knows the three names stops treating every visitor as a source of instructions.

Second, agree what happens when somebody outside the list asks for something. The answer is not to refuse and it is not to comply silently. It is to write, that day, saying what was asked, by whom, and that you are treating it as a request rather than an instruction pending confirmation from the Engineer. One paragraph. It converts a corridor conversation into a document.

Third, build the stop-before-you-start reflex into your team, not your commercial department. The 3.5 notice is worthless if it is written by somebody reviewing costs a month later, because by then the work exists. The person who has to recognise the moment is the engineer holding the marked-up drawing.

And when you do send one, diary the seven days. If the reply doesn't arrive, that instruction is gone — but only if somebody noticed.

Key takeaways

✔ Sub-clause 3.5 closes the list: the Engineer, the Engineer's Representative if appointed, and delegated assistants. Nobody else instructs you.

✔ Delegation under 3.4 works by notice to both parties and has no effect until that notice arrives. Seniority on site proves nothing.

✔ The Engineer cannot delegate acting under 3.7 or issuing a notice to correct under 15.1 — determinations stay with the Engineer personally.

✔ Replacing the Engineer takes at least forty-two days' notice, and you may object within fourteen days with reasons.

✔ If an instruction does not say it is a variation and you think it is — or it is unlawful, unsafe or impossible — you must give notice with reasons before starting any related work.

✔ Silence from the Engineer for seven days after that notice revokes the instruction. A reply binds you to its terms.

✔ Four silences so far: two run in your favour and two against you, and none of them start until somebody puts something in writing.

What's coming next

An instruction that admits it is a variation takes you straight into the machinery that decides what the change is worth — and that's a bigger subject than it looks. The employer has a right to vary, but not an unlimited one. The valuation follows rules about rates, and about when an existing rate stops being appropriate. And a variation can be initiated by a proposal from you rather than an instruction to you, which is the part almost nobody uses. Next week we take the variation from instruction to valued sum, and find out where the $2,850 reactive pile rate would actually have landed.