Can a contractor recover payment for variations instructed verbally?

A contractor's entitlement to payment for a variation instructed verbally under a FIDIC contract depends on the contract's authority and instruction provisions, any subsequent written confirmation, the actual work performed and applicable law. The standard forms contain formal variation procedures, including Clause 13 in the 1999 and 2017 editions. A contractor should not assume that every oral request from site staff automatically changes the contract price. Equally, an employer's acceptance and use of additional work may raise factual and legal questions that cannot always be dismissed solely by referring to an absent formal variation order.

Identify the contract form and amendments

Obtain the executed contract, applicable FIDIC edition, Particular Conditions and correspondence protocol.

FIDIC Red, Yellow and Silver contracts allocate design, instruction and determination powers differently. Local amendments may require a signed variation order before payment. The actual terms are decisive.

Variation versus clarification

A direction may change quantity, specification, design or execution method, or merely clarify an existing duty.

A contractor should first identify why the work falls outside the original scope. Calling a difficult part of already contracted work a variation does not automatically create an extra payment right.

Who gave the instruction?

The engineer, Employer's Representative or another authorised person may have defined powers under the contract.

An employer's security guard, site supervisor or informal consultant cannot necessarily bind the employer to additional expense. Obtain the delegation records and meeting minutes showing who directed the work.

Written instruction requirements

FIDIC variation procedures generally rely on properly documented instructions or proposals under Clause 13.

The particular contract may impose notice and approval requirements. Failure to follow them creates serious payment risk. A contractor should request written confirmation immediately after any oral direction.

Subsequent written confirmation

An oral meeting may be followed by minutes, email, site instruction or other documented acknowledgement.

Whether that record satisfies the contractual instruction provision depends on wording and actual authority. A document need not always be titled "variation order" to be relevant, but an informal note cannot automatically replace mandatory formalities.

Site meeting minutes

Minutes showing the employer directed an additional cable route or revised foundation can support the factual history.

The contractor should check whether the contract requires objections or confirmations within a specified period. Silence by meeting participants may have legal significance depending on the agreement, but should not be treated as automatic approval of every cost.

Work actually performed

Preserve site diaries, photographs, daily labour reports, material delivery records, measured quantities and relevant drawings.

Evidence of work helps establish whether an additional activity occurred. It does not alone prove contractual entitlement to payment, so the scope and authority issues must also be addressed.

Rates and valuation

The contract may provide existing bill rates, adjusted rates, daywork or other valuation methods for variations.

The contractor should calculate quantities and documented direct and indirect costs using the governing mechanism. A retrospective lump sum selected without records may be challenged by the employer.

Notice under Clause 20

The 2017 forms contain detailed claims procedures, including Sub-Clause 20.2 for claims for payment or extension of time, subject to applicable conditions.

A contractor should separately assess whether a variation claim requires timely contractual notice. An instruction record and claims notice may perform different legal functions.

Time effects of variation

Additional work may delay critical activities or create disruption. The contractor should maintain an updated programme and demonstrate causation.

Payment for extra quantities does not automatically establish an extension of time. An EOT claim should follow the applicable clause and evidence requirements.

Employer benefit and acceptance

The employer's use of completed additional work can be relevant to equitable or contractual arguments, subject to law.

However, public bodies may lack authority to pay for unauthorised commitments, and mandatory contract formalities can be significant. Benefit alone is not a universal substitute for an authorised variation.

Estoppel and waiver questions

The contractor may argue that the employer knowingly represented that the instruction would be paid or waived a specified procedural requirement.

Such arguments depend on the contract, authority and conduct and should be pleaded carefully. A site officer cannot necessarily waive a mandatory approval condition beyond their legal powers.

Public procurement constraints

Government construction contracts can have financial approval and procurement restrictions concerning additional work.

A verbal site order may not satisfy budgetary or delegated authority requirements. The parties should distinguish technical approval from authority to commit public funds.

Emergency works

Unexpected safety conditions may require urgent protective work before a formal document can be issued.

The contractor should notify the employer promptly and preserve why immediate action was necessary. Emergency circumstances may affect legal analysis but do not automatically eliminate contractual reporting duties.

A technical change example

A city surveillance employer verbally directs additional fibre cable and new cabinet locations after contract drawings are approved.

The contractor should record the instruction, quantities, associated cost and programme effects, then seek formal confirmation and determination. An email acknowledging changed locations may support the claim, subject to authority and contract terms.

A foundation example

A site engineer requests deeper foundations after a geotechnical observation. The contractor performs them and the employer later disputes payment.

The relevant inquiry includes whether the depth was already required, who authorised the change, contemporaneous records and the agreed valuation procedure. Merely proving concrete was poured does not settle the contract question.

Disputes over certification

The engineer may refuse to certify additional sums because no formal variation exists.

The contractor can seek a reasoned contractual determination and preserve notice-of-dissatisfaction and DAAB rights under the relevant FIDIC form. Silence or unexplained rejection should be documented.

Best practice before execution

Issue a written request identifying the proposed variation, estimated cost, delay effect and requested confirmation.

Where the work cannot be safely deferred, clearly reserve rights and follow the contract's urgent direction mechanism. Avoid relying on verbal assurances that invoices will be approved later.

Preparing a claim

Build a variation register containing instruction date, authorising person, source document, scope comparison, measurements, rates, notice dates and payment status.

This can show the contractual foundation of each claim without merging dozens of unrelated changes into one unsupported amount.

Opinion and recommended course

Verbal variation directions create significant payment risk under FIDIC. Entitlement requires analysis of authority, prescribed procedure, performed work, notice and valuation. Confirm directions promptly in writing, preserve objective records and follow the determination and dispute route. Neither oral instruction nor employer benefit automatically guarantees compensation in every contract.

Principal authorities: FIDIC Conditions of Contract, Clause 13 and relevant Sub-Clause 20.2 in 2017 editions; contractual Particular Conditions; Contract Act, 1872; applicable Pakistani public procurement and construction law; arbitration agreement and governing dispute rules.