Civil Engineering Reference
In-Depth Information
directly to the contractor, must the architect
then confirm those instructions in writing?
Many employers seem to find it difficult to stay away from site. It should go without saying
that employers should never be allowed to visit site unaccompanied. At best they will get
a warped idea of what is happening (for example, all the rooms look too small at found-
ation stage); at worst they may answer questions from the contractor or give instructions
even when no questions are asked. The contractor should be carefully briefed at the pre-
start meeting always to refer any queries to the architect and never to ask the employer any
questions directly. Despite this, instructions may be given directly to the contractor and the
contractor may carry out the instruction without reference to the architect. The architect is
not obliged to confirm the instructions in writing.
The first thing to establish is why and in what circumstances the instructions were given.
The second is to establish the effect of the instructions on the Works as a whole. It may be
thattheemployergavetheinstructionbutalsotoldthecontractortocheckwiththearchitect,
or it may be that the employer gave the instruction without really understanding what was
being asked. Neither of these circumstances exonerates both employer and contractor from
the charge of failing to act in accordance with the contract, of course, but life is like that.
People fail to act as they should.
If the architect decides that the instruction, although given directly, is of the kind that
would have been issued without difficulty if the employer had asked, the architect will pre-
sumably have no problems with ratifying the instruction. The position becomes more dif-
ficult if it is an instruction that the architect would not have issued and which perhaps has
a detrimental effect on the project. There is no doubt that the employer and contractor, as
parties to the contract, are entitled to vary the terms as they wish. If the employer decides
to give a direct instruction, albeit the contract provides for only the architect to do that, and
if the contractor accepts the instruction, it is likely that either a fresh little contract has been
formed for that item of work or, alternatively, that the item of work may rank as a variation
to the original contract. Obviously, the architect cannot include the value of such a variation
in a certificate unless it is the subject of an architect's instruction. If the architect does not
confirm with an instruction, the cost of the variation must be paid by the employer directly
to the contractor without a certificate.
Acontractorwhoacceptsadirectinstructionfromtheemployerisunwise.Ifthecontract-
or carries out the work, but the employer contends that the instruction was never given, the
contractor is in breach of contract and can be obliged to amend the work to conform to the
contract documents.
