Construction Law/Refuse

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Question
Dear Mr. Peter M. Elliott,
We are a Contractor under the EPC contract, the type of contract condition is similar to fidic 1999, and the clause of CLAIMS, DISPUTES AND ARBITRATION is exactly same with fidic 1999ís.

The Employer/ The Engineer instructed us to carry out a work, we send notice of Variation Order but they replied that the work is under the contractorís original scope. After some discussion, all parties havenít reached any agreement on this issue yet. We donít want to do the work unless we get the Variation order confirmation, otherwise we want to refuse to carry out the work.

My question here is, are the Contractor entitled to a refusal in such case, do we have to responsible to any duties or payment Ö

Thank you very much.

T. T. Linh

Answer
Dear Tran Linh,

It would appear that there is a dispute here.  The reasons for refusing an instruction are few.  If you consider that the work cannot be done in the time for completion or the materials are not available, then you can advise the Engineer and he can cancel, confirm or vary the instruction.  If he confirms the instruction and repeats that it is part of the original scope of works, then your only course is to submit a claim under clause 20.1 within 28 days.  If the dispute cannot be resolved, then you have to go through the DAB, Amicable Settlement, Arbitration route.  

Construction Law

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Peter M. Elliott

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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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