Instructing and Pricing a Variation

Tuesday afternoon, and the bifold is nine weeks out

The steels are in, the opening is formed, and the blockwork has reached the head. The client comes down the garden with her phone held out and a photograph of somebody else's kitchen on it: a fixed pane with a single side-hung door beside it, instead of the three-leaf bifold on the drawing she approved in March. Before you get too far, she says, could we? The builder says he will look into it, which is the correct answer, and it is the last correct thing that happens for four days.

Because the bifold is not something that will be bought. It is something that has been bought. A deposit went to the fabricator eleven days ago, a survey is booked, and somewhere in a factory a cutting list either has or has not been released. Whether her question costs the price of a phone call or the price of a doorset is decided entirely by which side of that release the call falls on, and nobody standing in the garden knows which side that is.

What follows is the sequence that turns could we into a signed line — one side of one page, ten fields — and does it before anybody telephones the fabricator. The order of operations is the whole of it: an instruction that is dated and properly authorised, a price built on a stated basis, an answer about time given in the same breath as the answer about money, and only then the amendment to the supply order. Reverse any two of those and somebody ends up paying for a door that nobody wants.

Nobody has instructed anything yet

A client wanting something is not an instruction. It is the reason an instruction might be issued. That sounds like pedantry while you are standing on a lawn, and it stops sounding like pedantry the first time two people remember the same conversation differently. What makes an instruction is that it identifies the change, carries a date, and comes from somebody with the authority to commit the money.

Authority is the part that gets skipped on domestic work, because there is usually only one person there. Check it anyway. Joint owners where only one is on site. A client drawing down a lender's staged advance against a valuation of a scheme the lender holds a drawing of. A landlord whose managing agent is the party actually named on the contract. A builder who takes his instruction from whoever is standing nearest the work is exposed exactly as far as that person's authority fails to run, and he finds out at the end.

The standard forms all solve this the same way, and the solution is worth borrowing on a job that uses none of them. Under the JCT Minor Works Building Contract and the Building Contract for a Home Owner/Occupier, a change arrives as an instruction from the person the contract names as able to give one, and the contractor's protection is that anything said aloud is confirmed in writing before it is acted upon. NEC4 goes further and makes the two things one thing: the Project Manager gives an instruction changing the Scope, and clause 60.1(1) makes that instruction a compensation event in itself, so the change to the work and the entitlement it creates are notified together rather than argued over separately six weeks later.

AIA A201 is the most useful of the three at domestic scale, because its Article 7 separates three instruments the trade habitually calls by one name. A Change Order under Section 7.2 is agreement: scope, money and time, signed by owner, architect and contractor, issued on AIA Document G701, and it is what everybody pictures when they say variation. A Construction Change Directive under Section 7.3, issued on G714, is what you reach for when the work genuinely cannot wait for a price — the owner and architect direct it, the contractor performs it, and the adjustment is settled afterwards by a method the article sets out, with the contractor keeping an itemised accounting in the meantime. A minor change under Section 7.4 is the architect alone, on the express footing that it affects neither the contract sum nor the contract time.

The door question is the first of those three. Nothing is stopping, no gang is standing in a trench, and the only reason to reach for either of the others is that somebody has already telephoned the fabricator.

1. Date and hour the instruction was given, because the fabricator's release is also dated and the two have to be compared.
2. What comes out, identified by its drawing reference and its line on the schedule rather than by description alone.
3. What goes in, specified tightly enough for a supplier to quote from it: leaf configuration, opening direction, threshold, finish, glass specification, and the structural opening it now has to fit.
4. Who gave it, in full — and on whose authority, where more than one person owns the building or a lender is funding it.
5. Whether the contractor is authorised to hold, amend or cancel any existing order while the price is being obtained, and if so which order.
6. That the price and the effect on the completion date are both to be returned before the change is confirmed, and that nothing is ordered until they are.

The old opening was approved and the new one has not been

A door change is a change to the envelope, and the envelope was approved on the strength of the door being deleted. Building control was notified of a scheme. An energy calculation counted a glazed area. Somewhere in that elevation there may be an opening a bedroom is relying on. Confirming a price before those are checked is agreeing to pay for something that may not be permitted, and the second variation that corrects it will be argued about on much worse terms than the first.

In England and Wales the checks a door swap re-opens are few and quick. Approved Document L, Volume 1 sets limiting standards for windows and doors and allows compliance to be demonstrated on an area-weighted basis, so replacing a large glazed unit with a smaller one moves the sum in the direction that usually helps and occasionally does not, depending on what else in the extension was carrying it. Approved Document B is the one to verify rather than assume: if escape from a room depended on an opening in that wall, the replacement has to preserve it, and a fixed pane preserves nothing. Approved Document K governs glazing in critical locations, with impact performance classified to BS EN 12600, and the doorset's own weathertightness, operation and strength are classified to BS 6375. Approved Document Q applies to new dwellings rather than to an extension of an existing one, so security performance here is a contractual choice rather than a regulatory duty — which is worth writing down as a choice, so that nobody later mistakes it for a requirement somebody dropped.

The American equivalents sit in the same places and behave the same way. IRC Section R310 covers emergency escape and rescue openings, Section R308 covers safety glazing, installation is normally referred to ASTM E2112, and product performance to AAMA/WDMA/CSA 101/I.S.2/A440. Wherever the job is, the point is procedural rather than technical: the check takes ten minutes on the telephone to whoever is inspecting the job, and the answer belongs on the variation sheet as a line of its own — approvals checked, by whom, on what date — because it is the line that stops the price being agreed twice. Note the resurvey while you are there. BS 8213-4 is the code of practice standing behind the survey and installation of external doorsets, and a changed configuration means the survey the fabricator has already done no longer describes anything.

Which of four bases the number is built on

A price with no stated basis is a number somebody made up, and on the page it is indistinguishable from a number somebody worked out. The habit worth acquiring is to write the basis above the figure, in four or five words, before the figure exists. It costs nothing and it converts every later disagreement from an argument about trustworthiness into an argument about a rate, which is a much shorter argument.

The bases are not a matter of taste; the standard forms name them, and the naming is the useful part. JCT's Standard Building Contract collects them as valuation rules and puts them in a hierarchy. Where the changed work is of similar character to work already priced in the contract, carried out under similar conditions and without significant change in quantity, it is valued at the contract rates. Where the character is similar but the conditions or the quantities have moved, those rates are the starting point and are adjusted — a pro-rata valuation, with the adjustment written down rather than absorbed. Where nothing in the contract resembles it, it is a fair valuation. And where it cannot properly be measured at all, it goes on daywork, with the prime cost defined by the RICS Definition of Prime Cost of Daywork carried out under a Building Contract and the percentage additions taken from the contract rather than invented at the end of the job.

NEC4 does it differently and instructively. A compensation event is assessed on the forecast Defined Cost of the work not yet done, plus the Fee, and it is assessed on that forecast even where the actual turns out otherwise — which puts the risk of the forecast on whoever made it, and is the entire reason the quotation goes in before the work starts. Clauses 62 and 63 carry that machinery, and clause 61.3 puts an eight-week limit on a contractor notifying an event he has become aware of — a limit that does not bite where the event arose from the Project Manager's own instruction, which is the single best argument for having the instruction issued from the other side in writing. AIA A201's Article 7 offers the same menu more directly: mutual acceptance of a lump sum with supporting data, unit prices already stated in the contract, cost of the work plus a fee, or, failing agreement, the method the article provides with an itemised accounting kept as the work proceeds.

On the doors, three of those four bases are live and the fourth is not, and the price should be written as three lines rather than blended into one. The fitting is similar-character work already priced in the contract, so it starts at contract rates and is then adjusted pro rata for the fact that hanging one leaf is not hanging three — two of the bases, arriving on one line. The new doorset resembles nothing in the priced document, so it is a fair valuation, and the supplier's quotation is the evidence that makes it one rather than an assertion. The abortive element — the settlement with the fabricator, the resurvey, the wasted delivery slot — is a fair valuation as well, evidenced by third-party invoices rather than by any rate. Daywork is the basis that stays out of this one, because every part of it can be measured in advance. Blended into a single figure, the client is asked to accept an opaque number and will reasonably resist it. Split into three, each line can be disputed on its own terms, and two of them usually are not disputed at all.

Time is the second answer and it is due with the first

A price agreed without an answer about time is half an agreement, and it is the half that produces the row in week fourteen. These doors sit on the critical path: the opening cannot be closed, the plasterer cannot start on that elevation, the scaffold cannot come down and the client cannot have her kitchen back. A new order restarts a lead time, and it restarts from the day the amended order is confirmed rather than from the day she changed her mind.

Two distinct sums live in here and blending them is the commonest error on a small job. The first is the direct cost of the change: the doorset, the labour, the abortive work. The second is the cost of the job simply taking longer — further weeks of scaffold hire, welfare, fencing, insurance, plant standing idle, and supervision that continues whether or not anybody is working. NEC4's discipline is the one to copy here: the quotation for a compensation event covers changes to the Prices and to the Completion Date in one document, submitted before the instruction is confirmed. The Society of Construction Law's Delay and Disruption Protocol argues the same case from the opposite end, that an entitlement assessed while the facts are still visible is worth far more than one reconstructed out of invoices at the end of the job.

Do not assume the two move together, either. A change can cost money and no time at all. It can cost time and almost no money. And — the case that catches people — it can quietly consume float that some other item was relying on, so the doors themselves land on programme and the decorator does not. Whichever of the three it is, record the outcome as a revised completion date rather than as a number of weeks. A number of weeks has to be added to something, and nobody afterwards agrees what it was added to.

1. The date the amended order is confirmed, which is where the new lead time actually begins.
2. The revised delivery week, in writing from the fabricator, rather than the one offered on the telephone.
3. Which trades were booked against the old delivery, and what it costs to move each of them.
4. The time-related items that run whether or not work is happening: scaffold, welfare, fencing, plant, insurance, supervision.
5. The revised completion date as a date, and whether any payment stage moves with it.

When none of it was written down

The failure case is worth rehearsing, because it is common and because it is not symmetrical. The builder takes the client's word in the garden on Tuesday, telephones the fabricator on Wednesday, pays a settlement, orders a different doorset and produces the bill in week nine. The client remembers asking a question and receiving no price. Neither of them is lying, and both of them are certain.

What is left at that point is thin. Where work has been done at a client's request and no price was agreed, section 51 of the Consumer Rights Act 2015 supplies a reasonable price — but at the client's request is precisely the fact in dispute, and it is the builder who has to prove it. A supplier's invoice proves money was spent; it proves nothing about who authorised the spending. The party who spent it without a signature carries that gap, and on domestic work that is nearly always the builder, because the client's exposure is limited to declining to pay while the builder's is cash that has already left. Nor is there a quick forum: the commercial payment and adjudication machinery does not reach a contract with a residential occupier, as the stage-payments guide sets out, so the route is the county court and getting there costs more than most door changes are worth.

The defence is cheap and it is not a contract clause. It is a dated note of the conversation, sent the same day, in something that carries a timestamp, saying what was asked for, roughly what it looks like it will cost, what it will do to the completion date, and that nothing will be ordered or cancelled until there is a reply. A client who does not reply has not agreed to anything. A client who replies has created the record. Either outcome is better than Wednesday's telephone call, and the note takes four minutes to write in a van.

Two initials, then the order is amended

The finished object is one side of one page: the register's ten columns filled in for a single change, with the deleted item identified by drawing reference and the replacement specified tightly enough for a fabricator to quote from. At the foot, two signatures and the same date written twice.

The order those fields are filled in is the only thing this page has really been about. The supplier is asked what the change costs before the client is told what it costs. The approvals are checked before the price is fixed. The time answer is given alongside the money answer rather than a fortnight behind it. And the amendment to the fabricator's order goes in after the signatures, never before — a rule that feels absurdly formal for a house extension right up until the first time somebody changes their mind twice.