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Construction Law/Variations in FIDIC 1999

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Question
Dear Sir

With reference to Sub-Clauses 13.1, 13.2 and 13.3 (Variation) and the link with Clause 3.5 (determination)(note that the C = the Contractor, the E = the engineer and V.I = variation instruction):

1- I need to know when exactly the C has the right to begin with the varied work (preparing drawings, procurement and execution on site), must he do this after the V.I has been issued and he got satisfied with it? or he can begin with the same during the negotiation of his proposal? (I am confused because in 13.1 the C can give notice to the E refusing the variation provided submitting the justifications of his refusal and also in 3.5; if he is not satisfied with the final determination of the E, he can give notice of the same within 14 days, so; does this mean that the C can refuse any variation at the end or he is obliged to do it despite his dissatisfaction and it would be a dispute in this case?  

2- in  13.1 when the C may give notice of his objection on a variation due to any reason of the mentioned ones, the clause says that the E would review these reasons then cancel, confirm or vary the instruction. Does the word "confirm" here mean that the E can force the C to do the varied work even if the reasons raised by the C are correct?

3- Value engineering (13.2), does it mean only when the C initiates a variation? can't the E initiate a variation and be considered as Value engineering as well?

Thank you Sir

Answer
Dear Khaled,

Excuse me for replying late as I was in Halong Bay for a few days.

Hope this still helps.


01. The Contractor shall execute the variation instructed by the Engineer as soon as he receives the instruction. Please take note of sub-clause 3.3 also (Instructions of the Engineer), wherein it states that the Contractor shall comply with all instructions issued by the Engineer in connection with the Contract.  If he cannot obtain the Goods required by the Variation then the Contractor should give notice (with supporting particulars) to the Engineer (ref. sub-clause 13.1).

02. Confirmation of the Engineer does not relieve the Contractor from any of his obligations under the Contract. Going back to sub-clause 13.1, the Contractor shall be bound and execute all Variations initiated by the Contractor. If the Contractor fails to execute the instruction made by the Engineer then he (Contractor) may be liable for delay damages or any additional claim as per sub-clause 2.5

03. Please have a look at items (a) to (f) of sub-clause 13.1.  which defines Variations. Value Engineering is initiated by the Contractor.

Regards,

Jonathan L. Peralta

Construction Law

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Jonathan L. Peralta

Expertise

Questions relating to construction claims, Extension of Time, Variations, Interim Payment and delay analysis under FIDIC Form of Contracts.

Experience

Experience in the following sectors: buildings, residential, infrastructure, civil and marine works. Have worked for different international contractors in Myanmar, Vietnam and the Philippines.

Organizations
AACEI, U.S.A., Dispute Resolution Board Foundation,U.S.A., ASCE, U.S.A., PICE,Philippines

Education/Credentials
Bachelor of Science in Civil Engineering, Registered Civil Engineer in the Philippines

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