Construction Law/Sub-Clause 13.1
QUESTION: Dear Sir,
In accordance with Sub-Clause 13.1 GCC of FIDIC MDB 2010,
“The Contractor shall execute and be bound by each Variation, unless the Contractor promptly gives notice to the Engineer stating (with supporting particulars) that (i) the Contractor cannot readily obtain the Goods required for the Variation, or (ii) such Variation triggers a substantial change in the sequence or progress of the Works. Upon receiving this notice, the Engineer shall cancel, confirm or vary the instruction.”
In our Contract, a Variation was issued by the Engineer just before the expiry of Time for Completion and the Contractor has executed the varied work and paid as per agreed rates but no EoT was agreed. The Contractor had not notified the Engineer under the stated referred Sub-Clause 13.1. Now at a later stage, Contractor has stated that these varied work have triggers a substantial change in sequence of the Progress of Works and EoT must be agreed. My question is that is the Contractor’s failures to timely notification of Sub-Clause 13.1 deprive him for the extended time? The Contractor has not proceeded under Sub-Clause 20.1 because of strict timely notification of 28 days.
I would like to ask further that if the Contractor has notified under Sub-Clause 13.1 that these varied work have trigger substantial change in sequence of work but the Engineer failed to cancel, confirm or vary the instruction and in the meanwhile the Contractor has executed the varied work. Then again, the Contractor has entitlement to EoT for this varied work?
ANSWER: Dear Umer Sahib,
Thank you for your question.
As i look at the issue is apart from contractor"s failure to promptly notifying, the evaluation process conducted by the Engineer is also incomplete if it is true that work involved in variation and re-assessed at this stage need extra time.I suggest that Engineer cancel earlier VO issued and issues a new VO on the basis of contractor now at a later stage.There is no bar on this and in fact variation can be initiated any time as per clause 13.1 and here is a good reason to correct the mistake
I hope my view are clear on the subject
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QUESTION: Thanks for the answer.
As the Employer is not agreed to grant any EoT at this stage, so the Employer is of the view that as the Contractor has not notified under Sub-Clause 13.1 therefore it is considered that Contractor was agreed to execute varied work without any additional time. My question again is that is this proposition is correct under Sub-Clause 13.1?
Dear umer Sahib,
Under these conditons, if i am the Contractor and feel that extra time can be adequately substantiated,I will write to the employer/engineer to review this and if not acceptable yet,I will ask for a formal Engineer's decision before proceeding for amicable settlement/arbitration route as necessary.Such matters normally do not go beyond amicable settlement in the reffered process and both parties after hectic arguments settle upto this stage.I remember doing this as 'site agent/PM' on national Assembly project at Islamabad about 3 decades back on behalf of Contractors M/S MLC.