How do you notify a variation on a landscape subcontract?

What counts as a variation on a landscape subcontract?

A variation is a change to the subcontract works directed by the head contractor after the subcontract is signed: an addition, an omission, or a change to how or where the work is done. On a landscape package that might be a revised planting plan, an extra length of edging, a different paving unit or a deleted garden bed.

Two other events are often confused with variations, and most subcontracts treat them under separate clauses with their own notice rules:

• A latent condition is a physical site condition that differs from what could reasonably have been anticipated at tender, such as buried rubble, rock or unmarked services under a planting bed.
• An extension of time is an adjustment to the date for practical completion because of a qualifying delay. A variation can cause one, but the time claim is usually notified separately.

Work that was already in the drawings and specification you priced is not a variation, however much harder it turned out to be. Knowing your scope is the starting point, which is why reading the tender scope carefully pays off long after the tender closes.

What does the variation clause in your subcontract say?

The variation clause is the part of the subcontract that sets out who can direct a variation, how it must be notified, what the notice must contain, how it is valued and the deadline for giving notice. It decides whether your claim is paid, so read it before the job starts, not after the first change.

Pay particular attention to any time bar. A time bar is a clause that says a claim not notified within a set period, or not in the required form, is lost. Notice periods vary between contracts and are often amended in the special conditions, so do not rely on what the last job allowed. Check your subcontract, note the deadlines and the person notices must go to, and keep that summary where your site supervisor can see it.

Whether a time bar will be enforced in a particular dispute is a legal question. Treat every deadline as binding and get advice if one has been missed. If the clause is onerous, raise it before you sign: our scope and contract review flags these terms at tender stage, and your tender clarifications are the place to qualify them.

Why do you need a written direction before starting?

A written direction is the head contractor's instruction to carry out the changed work, and most subcontracts require variations to be directed in writing by a named person. Without it, the head contractor can argue the work was never instructed.

Site changes often start as a conversation with a site manager. When that happens, confirm it in writing the same day: what you were asked to do, by whom, when and where. Ask for a formal direction in the form the subcontract requires, and check that the person giving it has authority to do so under the contract.

What should a variation notice contain?

A variation notice is the written document that tells the head contractor a variation has arisen and what it will cost in money and time. It should be complete enough for a contract administrator to assess without chasing you. A complete notice includes:

• Reference: your variation number, the project, the subcontract and the clause you are notifying under.
• Direction: who directed the change, when, and a copy or reference of the instruction, RFI response or revised drawing.
• Description: what has changed compared with the subcontract scope, in plain terms.
• Drawings and photos: marked-up drawings showing the changed area and dated photos of existing conditions.
• Quantities: the added and omitted quantities, measured from the drawings, not estimated.
• Price or method: a price, or the basis it will be valued on (schedule rates, agreed rates or daywork) if the contract allows a price to follow.
• Time impact: whether the change affects your programme or the date for practical completion.

Price the change with the same care as the original bid. Our guide on how to price a landscape contract variation covers rates, time-related costs and margin.

What are the steps to notify a variation?

Notifying a variation is a short, repeatable process that should run the same way every time:

1. Recognise it. Compare the instruction or revised drawing against your subcontract scope and priced bill.
2. Check the clause. Confirm the notice deadline, required form and who it goes to.
3. Get or confirm the direction in writing. Do not rely on a conversation.
4. Record the existing condition. Take dated photos before anything changes.
5. Measure the change. Take off added and omitted quantities from the revised drawings.
6. Send the notice. Use the required method and keep proof of delivery.
7. Log it. Enter it in your variations register with date sent and status.
8. Follow up. Chase written approval before starting, unless the contract or a genuine emergency requires otherwise.

What records support a variation?

The records that support a variation are the ones made at the time: the site diary, dated photos, emails, RFIs, delivery dockets and timesheets. Records written weeks later carry far less weight than ones made on the day.

Keep a daily site diary noting who was on site, plant used, weather, delays and any instructions received. Where you work under daywork, have the dockets signed by the head contractor's representative each day. A bill of quantities from tender gives you the baseline to show exactly what changed.

What happens if you proceed without approval?

If you proceed without a written direction or without giving notice in time, you risk not being paid for the work. The head contractor may say the work was unauthorised, was within your scope, or was notified too late.

Sometimes the subcontract requires you to carry on while the variation is being assessed, or a safety issue means the work cannot wait. In those cases, notify immediately, state that you are proceeding under protest or as directed, and keep detailed records of labour, plant and materials so the value can be established later.

What if the variation is disputed?

A disputed variation should be handled through the dispute resolution clause in your subcontract, which usually sets out a notice of dispute and a period for the parties to negotiate. Follow that process exactly, in writing.

Every Australian state and territory has security of payment legislation that gives subcontractors a statutory process for payment claims, including adjudication. The requirements and timeframes differ between jurisdictions and are strict. Get legal advice before relying on it, and whenever a significant claim is rejected or a time bar is in question.

Summary table

The table below compares the three events most often confused on a landscape subcontract, and where to look in your contract for each.

Frequently asked questions

How long do I have to notify a variation?

It depends entirely on your subcontract. Notice periods differ between contracts and are often amended in the special conditions, so there is no general answer. Read the variation clause before work starts, write the deadline down and treat it as seriously as a tender closing date.

Is a verbal direction on site enough to claim a variation?

Usually not on its own. Most subcontracts require variations to be directed in writing. If you get a verbal direction, confirm it in writing straight away, setting out what you were told, by whom and when, and ask for a formal written direction before starting.

What is the difference between a variation and a latent condition?

A variation is a directed change to the scope of work. A latent condition is a physical site condition that differs from what could reasonably have been expected at tender, such as buried services or rock. Contracts usually deal with them under separate clauses and notice requirements.

Should a variation notice include an extension of time?

If the change affects your programme, say so in the notice. Many subcontracts deal with extensions of time under a separate clause with its own notice requirements, so you may need to give a separate time notice as well. Check the contract rather than assuming one notice covers both.

What happens if I do the work before the variation is approved?

You risk not being paid for it. Without a written direction and timely notice, the head contractor may argue the work was unauthorised or the claim is out of time. If the contract or a genuine site emergency forces you to proceed, record everything and notify immediately.

When should I get legal advice about a variation?

Get advice when a significant claim is rejected, when you are unsure whether a time bar applies, or before using a payment claim process under security of payment legislation. Those steps have strict requirements of their own, and a mistake can be hard to undo.

Key takeaways

• A variation is a directed change to your scope; latent conditions and extensions of time usually sit under separate clauses.
• Read the variation clause and any time bar before work starts, and take deadlines from your subcontract, not habit.
• Get every direction in writing, and confirm verbal instructions in writing the same day.
• A complete notice covers reference, direction, description, drawings or photos, quantities, price or method and time impact.
• Contemporaneous records, from the site diary to dated photos, are what get variations paid.
• Get legal advice before relying on security of payment legislation or when a time bar is in question.