Instructions from people who cannot give them

The contract names a person who can issue instructions: the architect, the contract administrator, the employer’s agent, or under NEC the project manager. That person, and nobody else, can vary the works.

Who cannot instruct

• A clerk of works, whose role is inspection.
• A consultant engineer or services designer, unless the contract says so.
• The employer personally, on most forms, where a contract administrator has been appointed.
• A project manager acting for the employer, unless named in the contract.

Each of these is a person the contractor reasonably assumes has authority, because they are on site, they are senior and they are speaking on behalf of the client. Reasonable assumption is not authority.

What happens to the work

It gets done, because refusing to act on an apparently authoritative instruction is commercially difficult and often makes no sense on site.

Then the account arrives and the answer is that nobody with authority instructed it. Sometimes that response is opportunistic. Often it is genuine, because the person who gave the instruction really did not have the power to and everybody now knows it.

The routes that can save it

Ratification. The named person confirms it after the event. This is the ordinary fix and it takes one email. It requires somebody to ask, promptly.

Delegation. Where the contract allows the named person to delegate, and the delegation was made in writing and notified. Worth setting up at the start of a project rather than debated in the middle.

Apparent authority. An argument that the employer held the person out as having authority. It sometimes works and it is not something to plan around.

The practical discipline

• At contract stage, record who can instruct and circulate it. It takes five minutes and removes a recurring argument.
• If the contract allows delegation, get it in writing and on file.
• When an instruction comes from anyone else, send a confirmation to the named person the same week and ask them to ratify it.
• Log it either way. An instruction that turns out to be invalid is still something that happened, and the record of who gave it matters later.

Why the confirmation habit is worth it

A contractor that confirms every instruction, including the ones from people who could not give them, ends up with a file where every item of extra work is traceable to a written document. A contractor that confirms only the doubtful ones is making a judgement each time about which are doubtful, and it is the ones that did not look doubtful that cause the trouble.