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Construction Law/Variation Claim in Design & Build Contract

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Question
Dear Mr. Peter M. Elliott,

The project we are working is Design & Build and using FIDIC 99 edition, its a Lumsum Contract, but no BOQ. And we are supervision consultant. My question is how the contractor can claim Variation? Is there any clause support that without BOQ contractor can not claim variation.

Answer
Dear Ishaq Kan,

The procedure for variations and their valuation is covered by clause 13.  Unfortunately clause 12 for the Yellow Book covers tests on completion, rather than valuation as in the Red Book, so you have no guidance, unless there is something in the Particular Conditions.  The basis for claims is more restricted in the Yellow Book than in the Red Book, but the Contractor still has the right to be reimbursed extra costs if the Employer varies some thing.  

The Contract submits his claim in accordance with clause 20.1.  The absence of a BoQ just makes it more difficult to agree the cost and time effect of the variation.  I suggest that you deal any claim with care and gentleness.

Construction Law

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Peter M. Elliott

Expertise

First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol www.eotprotocol.com before submitting a question.

Experience

Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Organizations
Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

Education/Credentials
B Sc(Hons) in Civil Engineering

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