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Scope and changes

Working under protest: recording that you proceeded without agreeing

By Review.LivePublished 3 min readHow we write

At Tuesday's coordination meeting, the general contractor's superintendent tells your painting foreman that the owner's consultant has ruled: a second coat of intumescent paint on the lobby steel of the performing arts centre is in your subcontract, and it must be on before the scaffold comes down on Friday. Your price carried one coat.

Two colleagues use laptops during a quiet office discussion.
Photo: Christina @ wocintechchat.com M on Unsplash

If your contract requires you to proceed, do the work, but first tell the other side in writing that you proceed under protest, why you disagree and that you reserve your right to more money and time; then keep its cost separate from the first hour. Some contracts require the work to go on during a dispute: the US federal disputes clause has the contractor proceed diligently pending final resolution, and one Canadian federal department's conditions require the work to follow the department's decisions on what the plans and specifications mean, subject to dispute resolution. Silence can later read as agreement, and without separate records the disputed work's cost is only an estimate.

  1. Check your contract: whether you must proceed during a dispute, who decides questions of interpretation, and the notice periods.
  2. Get the direction in writing from someone with authority. If they accept it is a change and only the price is open, you are under a change directive instead.
  3. Send your protest before the work starts, within any notice period: the direction, your reasons and clause, and your reservation of price and time.
  4. Record the disputed work separately: its own cost code, and daily hours, equipment, material and photos, signed by the other side for quantities only.
  5. Repeat your reservation on progress claims and in minutes, and read every change order or release before signing it.
  6. Keep the crew out of the argument: they work to their usual standard.
  7. Pursue it through the contract's claim steps and deadlines; see escalation paths.

Common mistakes

  • Refusing the direction outright before checking whether the contract requires you to proceed.
  • Doing the work in silence and objecting at the final account.
  • A protest letter that argues but never asks for an adjustment.

What to say

The protest, in five sentences

  1. You:"On [date], [name, role] directed us to [work, location]."
  2. You:"We consider it outside our contract because [clause or drawing]."
  3. You:"To avoid delay, we are proceeding under protest."
  4. You:"We reserve our right to an adjustment of price and time."
  5. You:"We will record the cost separately and send daily records to sign."

Check your understanding

Mid-dispute, the general contractor sends a change order for unrelated door hardware that says it settles all claims to date. What do you do?

Show the answer
Do not sign it as written: that line could settle the coating dispute too. Ask for it to be limited to the door hardware, or add an exception for the coat, and get advice if they refuse. A later signature can undo a protest.

Sources

  1. FAR 52.233-1, Disputes (paragraph (i), proceeding pending final resolution)U.S. General Services Administration (Acquisition.gov) · United States (federal contracts) · accessed
  2. Construction general conditions, April 13, 2011 (GC2.2, Interpretation of Contract)Fisheries and Oceans Canada · Canada (one federal department's construction contracts; shown as an example) · accessed

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