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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,
Thank you for your question.
My response on your 3 questions is as follows:
1. The contractor has two options before he takes up varied items in hand. The first is after receiving the instructions by the Engineers or a request for the contractor to submit a proposal. This offcourse entails that work should be taken after issuance of variation order which includes prices and other terms agreed mutually between parties. Yes the contractor can ask for review of the matter depending on the genuine justification and grounds provided by him .
2. This entirely depend on the reasons raised by the contractor or points raised by the Engineer. In case of serious differences of opinion the matter has to be resolved through clause 20 / 3.5 root.
3. Yes value engineering proposal has to be initiated by the contractor at its own risk and cost. The Engineer has the "right to vary" at any time prior to issuing the taking over certificate for the works.This variation can be outcome of value engineering exercise by Engineer.
Hope i have answered your questions and if not please come back with specific point still requiring clarity.
Regards,
Liaqat Hayat

Construction Law

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Liaqat Hayat

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I can answer questions based on FIDIC 4 and FIDIC 1999 [design-build] with particular reference to time extension , price adjustment and disputes. I am in particular more inclined for response to points pertaining to how claims should be framed and put up in case of technical or other contractual shortcomings. Regarding procurement matters I have spent over 5 years as procurement specialist for highway authority and dealt with numerous claims and disputes in the capacity of "The Engineer" .

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