This topic of claiming for extra work without a formal instruction is very topical. Strictly, where there is a change or deviation to the Works, be it design, material or workmanship from the original contracted documents, such a change shall constitute a variation to the Works. However, in the construction industry, there are bound to be instances where the Contractor encounters difficulty to complete the Works due to the original design being imperfect; resulting in the need to carry out extra work in order to resolve the imperfect design to complete the Works entirely even though there is no formal instruction from S.O. (or Architect/Engineer/Project Contractors can claim for extra work Director). In all construction contract forms used in Malaysia, for a Contractor to claim for extra work, there must be an official Variation Order issued under the specific contract. So, under such a case where there is no formal instruction to execute such extra work, can the Contractor be entitled for the ‘extra work’ as a variation order?
Before we go further to answer this question, let us understand the meaning of ‘extra work’. Generally, there is no accepted meaning for ‘extra work’, but in a lump sum contract it may be accepted as the work which is not explicitly included and contemplated by the contracting parties at the time of the execution of the contract.
Whereas a re-measurement contract or those quantities of the work which is stated as ‘provisional’ in the bills of quantities, the increase quantities from the original contract / bills of quantities can be considered as extra work. In this circumstance, the extra work to be carried out by the Contractor does not necessary require the instruction directly from the S.O.. For example, the original contract/bills of quantities stated the quantities to drive the reinforced concrete pile is say 10m depth but at site it was driven and set at 15m depth. The excess quantities of 5m depth is now considered as extra work payable to the Contractor.
However, most construction contracts are lump sum contracts and not subject to re-measurement upon completion of the Works. Therefore, it is pertinent that the Contractor understands his entitlement for the ‘extra work’ under a lump sum contract before executing.