Instructions
Clause 3.5 of the 2017 Red and Yellow Books and clause 3.4 of the 2017 Silver Book deal with the Engineer's/Employer's instructions in largely the same way. This contrasts with the 1999 editions of the three Books, most noticeably in that in the Red Book the Engineer's instructions did not have to be in writing, although he was meant to give his instructions in writing wherever this was practicable. Provision was then made in clause 3.3 for confirmation of oral instructions, the confirmation then to be taken as constituting the Engineer's written instruction. In the 2017 editions of all three Books instructions must be in writing by virtue of clause 1.3, which expressly provides for instructions to be in writing and to comply with the other requirements of that clause.
Another difference between the 1999 editions of the three Books is that the instructions which the Engineer, in the Red and Yellow Books, might issue were to be instructions which may be necessary ‘… for the execution of the Works and the remedying of any defects, all in accordance with the Contract’ (clause 3.3). In the 1999 Silver Book, on the other hand, the instructions which the Employer might issue were to be instructions which may be necessary ‘… for the Contractor to perform his obligations under the Contract’ (clause 3.4).
In the 2017 editions of all three Books this wording has been replaced by a uniform wording: instructions may be issued where they are necessary ‘… for the execution of the Works, all in accordance with the Contract’. Thus the 2017 editions adopt the wording of the 1999 Red and Yellow Books with respect to the scope of instructions under the Contract, deleting however the words ‘… and of the remedying of any defects’.
It has been suggested by some commentators that this creates a difficulty, in that it is now unclear whether, strictly speaking, the Engineer or Employer is authorised to issue instructions for the remedying of defects. There does not, however, appear to be such a difficulty in reality since clause 7.6 of the three 2017 Books expressly entitles the Engineer or Employer to issue instructions at any time before taking over of the works to repair or remedy plant or materials not in accordance with the Contract, any other works which are not in accordance with the Contract and to carry out any remedial work urgently required for the safety of the works; and clause 7.5 in the three 2017 Books contains provision for notices to be given in respect of defective works as a result of examination, inspection, measurement or testing of any plant, materials, design or workmanship, with a power in the Engineer or Employer to give instructions under clause 7.6 where necessary. To have retained the old wording might, indeed, have generated confusion as to the appropriate clause under which an instruction to remedy defects prior to taking over might be given. Rather than retaining the old reference to the general power to issue instructions to remedy any defects, the 2017 editions have made the exercise of that power specific to clauses 7.5 and 7.6; in relation to defects dealt with after taking over, the provisions relating to the Defects Notification Period apply.
3.2.3 Instructions: The 2017 Provisions
Instructions are dealt with in largely the same way in the 2017 editions of all three Books, albeit with different numbering: clause 3.5 in the Red and Yellow Books, clause 3.4 in the Silver Book.
Clause 3.5/3.4 provides that the Engineer or Employer, through the Employer's Representative, may issue at any time instructions to the Contractor necessary for the execution of the works in accordance with the Contract.
It is expressly provided that the Contractor may only take instructions from:
1 (a) the Engineer/Employer's Representative; or
2 (b) the Engineer's Representative (Red or Yellow Book), if appointed; or
3 (c) an assistant with the appropriate delegated authority.
This establishes a clear channel of communication. Clause 3.5/3.4 then provides that, subject to a proviso concerning variations, the Contractor must comply with any instructions given on any matter related to the Contract.
The proviso is that if an instruction states that it constitutes a variation then clause 13.3.1, relating specifically to variation instructions, is to apply. This clause is considered in Section 11.3.1 below.
3.2.4 Where the Instruction Does Not State that it is a Variation
If the instruction is not stated to be a variation, but the Contractor considers either:
1 (a) that it does constitute a variation (or involves work that is already part of an existing variation); or
2 (b) that the instruction does not comply with applicable laws or will reduce the safety of the works or is technically impossible
then he is immediately, and before commencing any work related to the instruction, to give a notice to the Engineer or (if Silver Book) the Employer with reasons. The Engineer/Employer is to respond within seven days after receiving this notice, by giving a notice confirming, reversing or varying the instruction. If he does not do so within this time he will be deemed to have revoked the instruction. Otherwise, the Contractor is to comply with and be bound by the terms of the Engineer's or Employer's response.
3.2.5 Clause 3.5/3.4 Sub‐paragraph (a)
The provision referred to in sub‐paragraph (a) of Section 3.2.4, above, is intended to avoid a situation which often arises under the 1999 contracts. The Engineer/Employer might issue an instruction without identifying whether it amounts to a variation. If the Contractor believes that it does constitute a variation, he will raise the matter with the Engineer or Employer and, if the Engineer or Employer does not agree, or does not address the matter, pursue it as a claim while continuing with the work. This leaves the matter in limbo and can in some cases mean that it is not resolved until some time later, even if the initial 28‐day claim notice under clause 20.1 is issued to preserve the Contractor's position.
It was thought that the project might be better managed by requiring the Engineer or Employer to identify whether an instruction constituted a variation and seeking at least to some extent to have the question whether it actually was a variation dealt with as it arose.
The 2017 contracts therefore require the Contractor to raise ‘immediately’ the issue whether an instruction does constitute a variation, giving reasons why he contends that it does, and in the meantime to hold back from commencing any work related to the instruction. To avoid undue delay to the works the Engineer/Employer must respond within seven days to the Contractor's notice; and in his response he must either confirm, reverse or vary the instruction. The deeming provision designed to give force to this time limit is that, if he fails to respond within the seven days, he is deemed to have revoked the instruction. If, however, he does respond within time the Contractor must comply with the terms of the response and so, if the instruction is confirmed, must proceed with the works accordingly.
This clause thus gives the Contractor the opportunity to raise as soon as the instruction is given the issue whether it constitutes a variation together with providing his reasons for that position; the expression ‘immediately’ is undefined, and it may well be the case that the Contractor will require some time after the instruction is issued before he can appreciate if it does amount to a variation, and articulate his reasons for taking that view. A response after such a period might well be ‘immediate’ and it was not therefore felt appropriate to define when the Contractor might raise the point more precisely, still less to attach any express time bar to it; but it is acknowledged that
