Construction Solicitor Abbie Chisnall and Trainee Construction Law Solicitor Alicia Hilton look at variations to your construction contract, recognising how your contract deals with them and how to get paid for them.
Clients often seek advice from our specialist Construction Law Solicitors regarding variations to their contracts and how to protect their position to ensure that they get paid for variations they undertake.
This article discusses what variations are, what to look out for in your contract and how to maximise your chances of being paid for them.
A variation is an alteration to the scope of works which can take the form of an addition, substitution or omission from the works described in the contract.
Variations can take many different forms including changes to design, scope of works or an event which occurs outside of the contract. Examples include alterations to quantities required, working conditions, the sequence of work and abortive works.
Importantly, variations can be called a range of different things in a construction contract, including but not limited to:
These are all just different terms to describe a variation.
Whether your variation is valid will depend on whether your contract has a mechanism to allow for a unilateral change to the scope of works. Most standard form contracts including JCT and NEC expressly provide that a contractor is obliged to comply with all instructions, and it is usually a requirement that they be confirmed in writing.
In reality we know that is not what happens on most sites and the majority of instructions are given orally, in the midst of a busy project. You might insist on a written instruction but ultimately the work gets completed and a written instruction may get forgotten about. Unfortunately this can sometimes end in a dispute during the project or at final account stage, which can be a costly event.
Usually, you cannot refuse to carry out a variation as this could be considered a repudiatory breach. However, you should check your contract to understand if this applies.
Firstly, it is important to review your contract and understand the variation procedure as it will tell you what is required for a variation to be valid.
Understanding what is included in the scope of works under the contract in important, as failing to do so could result in a belief you are entitled to additional payment, when in fact you are not. If it is not clear, clarify this prior to starting work, as any ambiguity could have financial implications for you.
If the contract requires a formal instruction, ask for a formal instruction. If your contract does not specify a procedure to follow, or you fail to follow the contractual procedure, it is vital to keep a paper trail to evidence your claims for payment of the variations.
Variations should be recorded, whether that be in an email confirming a discussion which took place on site, or your own version of a site instruction form and supporting day works sheets, as this could become crucial to proving that additional work was requested, and subsequently carried out.
Please do not hesitate to contact our team of construction law lawyers if you would like to discuss anything in this article further or have any construction law queries that you would like to discuss.
Call us on 01206 593933 today to speak with one of our expert Construction Law Solicitors. Or complete the form below.
Other articles in the series:
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