Construction Law/Variation Order

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Question
Hello John,
We are working under FIDIC 1999.
Our Client has given order to proceed with a variation order without knowing about its time and cost implication.In doing so, it has asked us to provide time and cost implications.
Can we proceed with the variation order?

Answer
Dear Abdul,

Thank you for this question.

I am assuming that the contract is the FIDIC "Red Book" for building and engineering works designed by the Employer and I appreciate the apparent confusion of the Engineer both directing you to commence and requesting a proposal also; however tis is entirely acceptable.

My suggestion is that for clarification you record those facts back to the Engineer and give a clear indication of when you will commence work, which may be before you submit your proposal.

I am sure you are aware that the Contractor should comply with an instruction, which the Engineer's direction to commence on the changed work will be deemed to be. Likewise I am sure you are aware that even when a proposal is submitted such does not have to be accepted. In this respect I refer you to sub-clause 13.3 of the FIDIC condition of contract, which states:

"The Engineer shall .... after receiving such proposal ...respond with approval, disapproval or comments. The Contractor shall not delay any work whilst awaiting a response."

You should, however check that the Particular Conditions do not modify this requirements


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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