Verbal Instructions for Variations — The Written Confirmation Requirement

Construction sites run on verbal communication. Decisions are made, instructions are given, and work proceeds at a speed that formal written procedures cannot always match. The site manager who needs a problem solved doesn’t wait for a written instruction — and the subcontractor who wants to keep the programme moving doesn’t wait either. This is the reality of construction. It is also the source of a large proportion of variation disputes.

The Problem

The gap between what is instructed verbally on site and what is recorded in writing creates two related problems. First, the dispute about what was instructed: when the contractor claims payment for work done in response to a verbal instruction, the employer may deny giving the instruction, deny that it constituted a variation (as opposed to an obligation under the original contract), or dispute the quantity of work done. Without contemporaneous written evidence, the contractor’s position is weak. Second, the procedure for confirming verbal instructions is frequently not followed — meaning that even where the instruction is not in dispute, the formal contractual entitlement to payment may be lost.

The Legal Principle

Standard construction contracts deal with verbal instructions in different ways. Under JCT Standard Building Contract 2016, Clause 3.12 provides that where the contractor receives a verbal instruction that it believes is required to be confirmed in writing, it may itself confirm the instruction — and if the architect does not dissent within seven days, the instruction is deemed confirmed. Under FIDIC Red Book 2017, Clause 13.1 requires variations to be instructed by the engineer in writing, but Clause 3.5 allows instructions to be confirmed by the contractor where they are given orally.

The key principle is that the written confirmation procedure must be followed if the contractor is to preserve its entitlement. Acting on an unconfirmed verbal instruction, without confirming it in writing, risks losing the entitlement to payment — even if the work was clearly instructed and clearly additional to the contract scope.

Practical Application

For contractors: establish a site instruction register from day one of the project. Every verbal instruction received should be confirmed in writing to the contract administrator within 24 hours, following the procedure set out in the contract. The confirmation should identify: who gave the instruction, when, what it required, and why the contractor believes it constitutes a variation. Do not wait for the contract administrator to issue a written instruction — use the contractor confirmation procedure.

For employers and their representatives: reduce the risk of disputed verbal instructions by issuing written instructions as a matter of standard practice, even for minor matters. Where verbal instructions must be given, follow up with written confirmation promptly.

Risks

For contractors, the risk of acting on unconfirmed verbal instructions is that the entitlement to additional payment is lost, regardless of the merit of the claim. For employers, the risk is of accumulating unrecorded instructions that create significant financial exposure when a consolidated claim is submitted at project end. Both risks can be controlled by good contract administration from the outset.

Mitigation

Implement a simple, consistent instruction management system: all instructions recorded on a standard form, all verbal instructions confirmed in writing within 24 hours, and all instructions reviewed weekly with the contract administrator. This is not bureaucratic — it is the minimum required to manage contract entitlement effectively.

Conclusion

Verbal instructions are a fact of construction life, but they must be confirmed in writing if the contractor is to preserve its entitlement. The confirmation procedure is simple, quick, and contractually critical. The failure to follow it is one of the most preventable sources of variation disputes — and one of the most common.