The fix, the reason, the classification, the records and the time pathway, in 1 notice, the same day. The 130 mm example with the kerbs pouring in the morning.
A notice to the contractor is only useful if the contractor can do something with it. That means it has to say what is required, why and what happens next under the contract. A notice that says “rectify the levels” and nothing else moves the argument to next month, when the contractor claims a variation, the Principal says it was always the contractor’s problem and nobody wrote down what was actually instructed on the day.
On the Oceanbeach intersection the design pavement met steeper existing pavement at the tie ins and sat about 130 mm below the existing centreline. The subbase was already cast. The island kerbs were pouring the next morning. There was no time for a leisurely design review, so I set out the discrepancy and 2 ways to fix it, pushed an urgent design review through and instructed the option that built up in asphalt without milling anything already placed.
The instruction that went out that afternoon did 4 things in 1 notice. It set out the fix, by reference to the drawings and the levels. It classified it as a variation, so nobody had to argue later about whether it was one. It said what records were needed to value it, so the contractor kept them from that day. And it opened the extension of time pathway, so the time question ran under the contract from the start rather than surfacing in a claim 6 weeks later. That is the standard. If any of the 4 is missing, the notice is going to cost someone money.
The why matters because it decides the classification. Work required because the contractor’s work doesn’t meet the specification is not a variation. Work required because the design doesn’t meet the site is. If the notice states the reason, the classification follows and the contractor can price and programme against it. If it doesn’t, both sides fill in their own reason and they won’t match.
Every instruction says 1 of 3 things. This is a variation. This is not a variation. This is to be assessed when the contractor’s submission comes in. What it never does is stay silent, because silence reads as whichever answer suits the reader. If the answer isn’t known yet, say so and say what would settle it.
If a variation is going to be valued on cost, the records have to exist. Daywork sheets signed daily, not reconstructed at month end. Survey before and after. Photos with the date on them. Dockets. A notice that says which records are needed gets them kept. A notice that doesn’t gets a claim built from memory, which is worth less to both sides. Unrecorded hours are 1 of the 7 variation traps →
If the instructed work could affect completion, the notice says so and asks the contractor to advise the programme effect within the contract period. That starts the clock properly for both sides. The contractor can’t say later that it didn’t know notice was needed. The Principal can’t say later that it was never told there was a time effect. How the days then get assessed →
Things get said on site. A contractor who acts on something the Engineer’s Representative said at the toolbox is entitled to rely on it. So anything said on site that the contractor might act on gets confirmed in writing the same day, in the same form as any other instruction. If it wasn’t worth writing down, it wasn’t an instruction. What the ER can instruct →
On 2 council contracts running at the same time in 2024 that was 140 notices to the contractor, 47 variations, 13 payment schedules and 4 extensions of time, with both jobs in construction through the same months. The notices are the reason the variations and the extensions were assessable. Each one started from a piece of paper that said what was required, why and what came next.
Notices and instructions that say what is required and why, so they can be priced and programmed. Engineer’s Representative →
Common questions
What is required, by reference to drawings and levels. Why, because the reason decides whether it is a variation. Whether it is a variation, is not, or is to be assessed. What records are needed to value it. And whether it could affect completion, so the time pathway under the contract is open from day 1.
The contractor may reasonably rely on it, which is exactly why it should be confirmed in writing the same day in the same form as any other instruction. An instruction outside the Engineer’s Representative’s delegation is a separate problem, covered in the ER guide.
It has to say one of 3 things: it is, it is not, or it is to be assessed on the contractor’s submission. Silence is not an option, because both sides will read silence the way that suits them.
Because records that were not kept on the day cannot be created later. A notice that names the records needed gets them kept. Without it the claim is built from memory and is worth less to both sides.
The same day where the contractor is about to act on it. On the Oceanbeach example the kerbs were pouring the next morning. A notice that arrives after the work is done is a record of an argument, not an instruction.
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