Civil Engineering Reference
In-Depth Information
traditional contract if the contractor acts on
instructions given directly by the mechanical
services consultant?
The JCT traditional contracts are SBC, IC, ICD, MW and MWD. The parties to these con-
tracts are the employer and the contractor, and there is provision for naming an architect or
other contract administrator. SBC clause 3.10, IC and ICD clause 3.8, and MW and MWD
clause 3.4 require the contractor to comply forthwith with any instructions authorised un-
der the contract and issued by the architect. There is no provision in any of these contracts
for the mechanical services consultant or anyone else to issue instructions. Therefore, an in-
struction with which the contractor must comply cannot be issued by anyone other than the
contract administrator. Obviously, as parties to the contract, the employer and the contractor
may agree to vary some term or some piece of work, but the contractor is entitled to refuse
to carry out any instructions given by the employer.
The mechanical services engineer may be a sub-consultant to the architect or, more usu-
ally, engaged directly by the employer. In either case, neither the engineer nor any other
consultant is entitled to give instructions to the contractor under the terms of any of these
contracts. The correct procedure is for such consultants to give the architect a note of the
instruction required; when the architect is satisfied about the need for such instruction, it is
amatterforthearchitecttoissuetheinstructionunderthetermsofthecontract.Therefore,a
consultant who gives a direct instruction to the contractor is attempting to operate in breach
of the terms of the building contract. A contractor which accepts such instructions and pro-
ceeds to carry them out is in breach of its obligations to construct the Works in accordance
with the contract documents. The architect is entitled to instruct the contractor to remove
such work as being not in accordance with the contract. If the work, although not properly
instructed, is nevertheless work which should have been carried out, the architect has power
under the contract to ratify such instructions or, if appropriate, to accept the work with a
consequent reduction in the contract sum.
Sometimes the architect, at an early site meeting or in some other context, will say that
consultants may visit the site independently and may issue instructions directly to the con-
tractor. This is a thoroughly bad practice and sets the scene for serious misunderstandings
and other problems. The effect is probably to make each of the consultants the authorised
representativeofthearchitectforthatproject.Architectswhomakethiskindofarrangement
have a death wish.
