How does JCT clause 3.14 work?
Clause 3.14 of SBC/Q 2016 lets the Architect/Contract Administrator instruct a Variation, which the Contractor carries out, with only a narrow right to object.
Updated: . By Jack Butler-Kettle, Construction Claims Consultant.
The answer
It works in three parts. First, the power. The Architect/Contract Administrator may issue instructions requiring a Variation as defined in clause 5.1, and the Contractor carries them out. The Architect/Contract Administrator may also sanction in writing a Variation the Contractor made without an instruction. That is the route for putting right a change that happened on site first. Second, the right to object. The Contractor may make a reasonable objection, in writing, to a Variation of the kind referred to in clause 5.1.2. That is the second part of the definition of a Variation. It covers obligations or restrictions being imposed, added, changed or removed. They concern access to or use of the site, working space, working hours or the order of the work. There is no matching right to object to an addition, an omission or a change in the quality or quantity of the work itself. Third, no Variation instructed or sanctioned under the clause invalidates the contract. So the Contractor cannot treat a large or awkward change as ending the contract and price the work afresh outside it. The instruction is valued under section 5. Its effect on regular progress goes through clause 4.20 as a Relevant Matter, the loss and expense route. Time goes through the separate extension of time clauses. Four things go wrong in practice. An oral instruction is acted on and never confirmed. An objection is raised weeks after the work started, when it should have come before the instruction was carried out. The objection targets the scope of the work rather than a restriction. And the Contractor claims the amount of change has altered the bargain, when clause 3.14 says it has not.
Example
Illustrative example. The scenario and figures are invented.
The facts
An instruction adds 60 metres of drainage and, in the same letter, restricts all deliveries to a two-hour window each afternoon. The two halves of the instruction fall under different parts of clause 5.1.
What happens
- The drainage is a Variation under the first part of clause 5.1. The Contractor has no right to object to it, and it is measured and valued under the Valuation Rules at £9,000.
- The delivery restriction is a Variation of the kind referred to in clause 5.1.2.
- Within the week, the Contractor writes back objecting that a two-hour window cannot service a concrete pour, and proposes a four-hour window.
- The Architect/Contract Administrator amends the instruction to the four-hour window.
- The narrowed restriction is valued for its direct cost, and its effect on regular progress is notified under clause 4.21.
The outcome
The drainage is valued at £9,000. The narrowed delivery restriction is valued for its direct cost, with its effect on regular progress notified under clause 4.21.
A Contractor who works to the two-hour window for a month before claiming leaves the objection nothing to bite on.
To have your subcontract's instruction and confirmation rules mapped and a routine built around them, see our Unpaid Variation Prevention service.