Getting Paid for Extras: Variations That Don't Get Argued

‍‌‌​‌​‌​​​​​‌‌​​​‌‌​​​​​​​​​‍You've done extra work, you've paid lads and bought materials, and now they're shrugging and saying "no instruction" or "it's in the original price". You can get paid – but you need to be clear whether it's a variation under the contract or a quantum meruit ("what it's reasonably worth") job.

Most of the time, extra work on a job should be paid as a variation under the contract – that's your first route. Quantum meruit is the back-up when the contract doesn't cover the work or the agreed variation process has genuinely broken down.

This is general guidance only and is not legal advice. Always get a construction lawyer/claims specialist to look at real disputes, especially big ones.

1. STEP ONE: IS IT ACTUALLY "EXTRA" WORK?

Before you talk yourself into a fight, check the basics.

To get extra money under the contract you usually need to show:

• The original scope does not include the extra work.
• Someone with authority asked for the change (expressly or impliedly).
• There was at least an implied promise that you'd be paid extra.
• You've complied with any conditions precedent for variations (e.g. notice, written instruction, pricing agreement).

If you've:

• Just decided to use better materials on your own; or
• Changed the design without being asked; or
• Missed a scope item that was always in the drawings,

you're unlikely to get extra – that's on you.

So first job is scoping:

• Put the original spec/drawings next to what you actually did.
• Highlight the bits that clearly go beyond what was in the contract.
• For each, line up who asked for it and when (email, site instruction, WhatsApp, meeting note).

2. GETTING PAID AS A VARIATION UNDER THE CONTRACT

If the extra work fits within the contract's variation mechanism, that's your best path:

Most construction contracts and subcontracts have a variation clause:

• Client/contractor can order changes (additions, omissions, changes of spec, etc.).
• You then get paid more/less in line with the valuation rules.

To get money in:

Follow the variation procedure as far as you can

• Ask for written instructions where the contract says you should.
• If they issue "site instructions" or variation orders, keep them all in one log.
• If they refuse to write it down, send a short confirm-back email ("As agreed on site today, we'll also be doing X at your request").

Value it correctly Typical rules are:

• Use contract rates where the work is similar.
• Use new fair rates where it's different.
• Or sometimes cost plus agreed mark-up/dayworks.

Build a variation schedule with:

• Description and cross-ref to the instruction/email.
• Measures or daywork records.
• Rate and extended value.

Include variations in your interim/final applications

• Put a separate "Variations" section in every application.
• Reference the instruction numbers and dates.
• That way, when they under-value them you can adjudicate on both procedure (payment notices, pay less notices) and true value.

If they refuse to treat them as variations at all ("that's in the original scope"), you can:

• Argue the scope point on the wording and drawings; and
• If necessary, run a true value adjudication on the payment cycle or final account, asking the adjudicator to value those items properly.

3. WHEN QUANTUM MERUIT MIGHT RESCUE YOU

Quantum meruit is Latin for "as much as he has deserved". It's about getting a reasonable sum for work done where there's no valid contract price for that work – often because the work falls outside the contract, or because the contract route to payment has failed.

In a UK construction context, it may be in play if:

• There's no contract or the contract is void/never properly formed, but the other party knowingly accepted the work.
• The extra work is genuinely outside the contract and not covered by the variation clause at all – essentially a separate job bolted on.
• The parties treated the extra work as a separate agreement (e.g. "while you're here, can you also do X for £TBC?"). That can amount to a collateral contract or a quantum meruit claim.

Key points:

• Quantum meruit is usually a back-up when the contract doesn't give you a route to payment; courts won't let you use it to dodge an agreed price or agreed procedure just because it turned out badly for you.
• You still have to prove:
  • The work was done at their request or with their clear knowledge.
  • They received a benefit.
  • It would be unjust for them not to pay a reasonable amount.

Where it works well is things like:

• Employer and main contractor do a supplemental deal for a whole new bit of scope, and you, as subbie, are pulled into that work even though it's clearly outside your original subcontract – you may be entitled to a quantum meruit for that extra piece.

Valuation under quantum meruit is usually at a fair commercial rate – what that work would reasonably cost on the open market, not necessarily your contract rates.

4. HOW THE CONSTRUCTION ACT FITS IN

The Act doesn't create a right to extra money for variations; it gives you a payment engine you can use once you've got a basis to claim.

For extra work:

If it's a variation under the contract, you roll the value into your interim/final applications and use:

• Payment notices and pay less notices;
• Smash-and-grab if they miss notices;
• True value adjudication if they under-value the variation.

If it's genuinely outside the contract and you're going down the quantum meruit route, you're into:

• Negotiating a sensible figure;
• Or, if needed, a separate claim for a reasonable sum (often court rather than quick-fire adjudication, though some quantum meruit issues can end up in adjudication under a related contract).

Either way, your life is easier if you've:

• Logged what was asked for and when.
• Recorded labour, plant, and materials separately for the extra work (so you can back up your valuation).

5. PRACTICAL HABITS TO AVOID DOING FREE VARIATIONS

So you don't end up working for free:

Clarify scope up front Before you start, go through the drawings/spec and nail down what is and isn't included. If something is fuzzy, get it in writing – better a short awkward email now than a fight over "that was always in" later.

Don't start extra work without at least an email trail If they shout "just crack on, we'll sort it later", reply with a quick confirm:

"We'll proceed with [description] as an extra over our subcontract, to be valued as a variation/dayworks."

It's not perfect, but it's miles better than nothing.

Use daywork sheets for anything messy For rushed or unclear changes, get daywork sheets signed on site: labour hours, plant, materials. Those sheets are gold when you're arguing value later.

Keep a simple variations log One page with: Ref, date, who asked, description, status (priced/agreed/disputed), amount. Helps both cashflow forecasting and any adjudication.

This page is guidance only and does not constitute legal advice. Using it does not make us your legal adviser. Always get advice from a qualified construction lawyer or claims specialist before you start formal action or rely on quantum meruit.

What to do next

• Put the original spec and drawings next to what you actually did · highlight every item that clearly goes beyond what was in the contract.
• For each extra item, line up who asked for it and when (email, site instruction, WhatsApp, meeting note).
• Keep a simple variations log: reference number, date, who asked, description, status (priced/agreed/disputed), amount.
• Include a separate "Variations" section in every interim and final application · reference the instruction numbers and dates.
• If they refuse to treat extras as variations at all, consider a true value adjudication to get the work properly valued.

Sources

• Housing Grants, Construction and Regeneration Act 1996 · payment notice and adjudication rights apply to variation claims within interim and final applications
• Scheme for Construction Contracts (England and Wales) Regulations 1998 · fills in valuation and payment rules where the contract is silent on variations
• Local Democracy, Economic Development and Construction Act 2009 · amendments to the payment and notice regime

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