The Supervisor verbally instructs you, a Contractor, to carry out additional work under NEC3. The Project Manager (PM) is aware. You should:
- Do the work and claim payment
- Request a written instruction
- Obtain a PM Instruction
- Notify an Early Warning
My recent LinkedIn poll asked this question with almost 60% of those who voted getting the right answer. The correct answer is that the contractor should obtain a written PM Instruction before carrying out any additional work verbally instructed by the Supervisor under NEC3. This applies equally to the NEC4.
Under the provisions of NEC3 and NEC4 ECC, the contractor is obliged by clause 27.3 to obey an instruction which is issued in accordance with the contract and is given by the Supervisor or by the PM. Clause 13.1 of the contract requires each instruction to be issued in writing. If any verbal instruction is issued by either the Supervisor or the PM, the contractor should request a written instruction before complying with it otherwise there can be serious consequences when attempting to claim time or money, or in the event of a subsequent dispute.
Bearing all of this in mind, if the Supervisor issues an instruction to carry out additional work, effectively changing the Works Information (NEC3) or the Scope (NEC4), a contractor may believe that the instruction should be complied since it has been issued in writing.
However, the contractor is only obliged to comply with instructions which have been issued “in accordance with the contract”. Only the PM has power to change the Works Information or Scope under clause 14.3, meaning that any instruction for additional work issued by the Supervisor is not valid.
More importantly for the contractor, complying with an instruction of the Supervisor who has instructed a change to the Works Information or Scope is not one of the compensation events listed under clause 60.1. Only an instruction of the Project Manager changing the Works Information is listed as a compensation event. As unfair as it may seem, if a contractor has complied with the Supervisor's instruction, the Project Manager may validly refuse to pay the contractor for that work.
It is therefore of upmost importance that in these circumstances, that the contractor ensures the PM issues the appropriate instruction prior to the contractor expending money complying with the instruction and carrying out the work. That instruction will be a compensation event under clause 60.1(1).
Finally, it is also important to understand and strictly adhere to the processes which deal with compensation events, set out in clauses 61 to 65, and the timescales set out in those clauses. Failure to follow the correct notification procedure and contractual time limits can result in the PM refusing to pay or award time for compensation events which the contractor would otherwise be entitled to. Click herefor our blog on time limits for notification of compensation events which arise from the Project Manager giving an instruction.