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Construction Law/Instruction to vary works without the Engineer accepting the variations


Dear Florin,

we are main contractors working in a project in Abu Dhabi where the Engineer (and Employer) are continuously giving us instruction which are variations (adding items) to us but without confirming or apporving them as variation (intentionally as they have financing problems). They are saying we do not have the contractual right to stop the works once instructed and if we don't agree to claim pursuant to FIDIC 20.1 (RED FIDIC 99 is our contract). Following this constant attitude by the Engineer and Employer we have incurred substantial costs of many millions dirhams which if we follow the 20.1 we will probably get back after many years if lucky (Any calls for determination are responded back to us after 2-3 months but in the meanhwile we have to work).

1. Is there any way to exit this no sense agreement without incurring any more costs and causing the Employer to cash our perfromance bond?

2. Can we ignore these instructions? Do we have to proceed with the works for every instruction to add quantities and not approved by the Engineer as variations? Could you advise whether FIDIC 99 considers invalidity for this type of nosense instructions? We would expect the Engineer to act in a fair and competent manner to undertsand what is a real variation and instruct accordingly by accepting the variation in principle. Can we claim against the Engineer for intentional 'bad faith'?

Dear Alan

Thank you for your question.
I trust all those instructions are in writing.
1. You have an option to simply include those additional quantities in your Monthly Statements and ask to be paid.
If the Engineer will not include them in the subsequent IPC you can act accordingly and seek termination. But might be somewhat risky - you need to properly asses the contractual situation.
Or, if Engineer certifies the amounts, but Employer do not pay for long enough, that will be the best reason to terminate.

2. Yes, you must follow the instructions and no, FIDIC does not for such cases.
No, you can not claim against the Engineer,  you do not have a contractual relationship with them.

Hope that answers your questions.

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Questions related to Civil Engineering Contracts, using FIDIC or other Conditions of Contract, concerning Procurement procedures and documents (pre-qualification, tendering and contracting) and Services/ Works Contracts implementation matters including Determinations, Payments, Time Extensions, VOs, Claims/Disputes. Additionally, questions related to dealing with International Financing Institutions. Can also answer questions in Romanian. Can not answer improperly formulated questions.


Over 20 years of experience in the field of design, works supervision, construction, management of aid funds and technical assistance for various types of contracts implementation, including severe conflictual contractual situations leading to Claims and disputes. Claims/ Contract management, Disputes adjudication, Arbitration.

Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers Former member of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List and of DRBF Chapter for Eastern Europe Former member of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List Member of “” volunteers pool Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States

- Graduate in 1994 the Construction Institute - Graduate of several FIDIC,Procurement and other courses - Graduate of first Disputes Board Members Mentoring Scheme ( - FIDIC Accredited Adjudicator

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