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Construction Law/Variation order at project's final stage

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Question
Hi John,
We are PM working under FIDIC 99 red Book with amendments under the Particular conditions.
If the Engineer/owner requested variations (VOs) toward the end of the Project, and some of the VO has been incorporated within the Contractor impacted schedule in the subsequent submitted claims. Such VOs, were on the critical path as inserted and caused delay to the Project.
Meanwhile the Contractor have some own delays.
My question is:
1- Would we grant him the EOT based on the Impacted as planned analysis outcome, even if the Project schedule is pushed/prolonged due to the VOs only?

2- As for the accountability/cost for the said delays attributed to the advent of the VOs, their direct and indirect cost shouldn't it be normally part of the VO agreed amount that include already the OH&Profit as well? OR should be part of a separate disruption and/or prolongation Claim? or should we calculate/assess a prolongation amount?
or should we in this case ask him to submit a separate Claim?
If such is the case, what is the name of the Claim he would submit, and is there a way around under FIDIC 99, to avoid such payment by the Owner?
Kindly refer to specific FIDIC Clauses.
Rex

Answer
Dear Rex,

Thank you for this question; unfortunately it is almost impossible to give an answer.

What you need to do is perform a delay analysis exercise, taking each delay in turn as it occurred, and analysing th effect on the critical path of works. Also you must consider how the wording of your contract intends that concurrent delays (that is delays occurring at the same time and/or having like effect on the completion date but for which different parties are responsible) are to be treated.

I suggest that the Contractor should provide this as part of his claim submission, to prove the entitlement he claims; however in the absence of such from the contractor the Engineer must make a reasonable assessment taking into account all the information within his possession.

I hope that this assists you.

Kind regards,
John Dowse

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John Dowse

Expertise

Legal; contract interpretation; quantum; delay analysis. Practitioner in arbitration, adjudication and mediation.

Experience

Thirty-three (33) years experience in building and construction, at all levels both within contracting and consulting organisations. Practising arbitrator, adjudicator, and mediator. Faculty approved trainer for the Chartered Institute of Arbitrators. Lecturer on construction contract forms and dispute resolution practices.

Organizations
Chartered Institution of Civil Engineering Surveyors Chartered Institute of Arbitrators Institute of Directors Society of Construction Arbitrators

Publications
Various UK and International construction and legal publications.

Education/Credentials
LLB (Hons), Pg Dip (Legal Practice), MCInstCES MCIArb MIOD Barrister

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