Confirming a verbal instruction

The architect walks the site, sees a problem, and tells the foreman to deal with it. Everybody present understands what has been asked and why. Work starts that afternoon.

Contractually, nothing has happened. Under JCT instructions must be in writing, and an instruction that is not in writing is not an instruction. The work is being carried out without authority, and the money for it has no obvious route into the account.

The confirmation route

JCT provides a mechanism. If the contract administrator gives an instruction otherwise than in writing, it has no immediate effect, but the contractor may confirm it in writing within a set period. If the contract administrator does not dissent within a further period, the instruction takes effect from the end of that second period.

That is the confirmation of verbal instruction, the CVI. It exists because site does not stop for paperwork, and it works, provided somebody sends it.

The two failure modes

The first is the contractor doing the work and never confirming. When the variation is priced six months later there is no instruction behind it, and the response is that nobody authorised it. Sometimes that response is opportunistic and sometimes it is genuine, because the person who gave the instruction may not have had authority to give it.

The second is the contract administrator receiving a CVI and ignoring it. Silence is not neutral here: under the contract, not dissenting is what makes the instruction take effect. A CVI that describes something wider than what was actually said needs a prompt written correction, not a shrug.

What a usable CVI contains

• The date and place the instruction was given, and by whom.
• What was instructed, in enough detail to price.
• Whether it is expected to have a cost or time effect.
• A reference number, in the same sequence as written instructions.

Anything vaguer than that is not really a confirmation, because it does not tell the recipient what they are being asked to accept or dissent from.

Who can instruct

Only the person named in the contract. A clerk of works, a project manager acting for the employer, a consultant engineer: none of them can vary the works unless the contract says so, and an instruction from someone without authority does not become valid because it was reasonable.

If the contract allows delegation, the delegation should be in writing too, and on file. It is a five-minute job at the start that removes a recurring argument for the rest of the project.

The discipline

Confirm the same week, in the same numbering sequence as everything else, and record whether it was dissented from. The register then tells you what has authority behind it and what does not, which is the only question that matters when the account is being settled.