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Construction Law/Variation Procedure under Sub-Clause 13.3

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Question
Dear Madam,

I hope you enjoyed your vacation.

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 have any effect on entitlements?

The Contractor has also failed to submit notice under Sub-Clause 20.1 GCC for EoT. I noted that Sub-Clause 8.4 GCC states that an adjustment to Time for Completion can be agreed under Sub-Clause 13.3 without going through the procedure of Sub-Clause 20.1. As the Engineer has not requested the Contractor to submit proposal for the said variation and there is no time limit for the evaluation of Variation, then is it the Contractor contractual right to demand adjustment for Time for Completion  at this stage?

Regards,

UMER SHABBIR

Answer
Hi, Umer,
Yes, it was a wonderful vacation, with good friends, even if it was short.
The "protest" of the Contractor regarding the difficulty to obtain the goods and/or the changed sequence of the works is meant to make the instruction to vary feasible. It can be that the Engineer, knowing that the sequence or progress of the Works would be changed, the Engineer would vary or renounce at the instruction In your case, it may be obvious that the instruction would involve time, too, but it simply was not discussed.
The Contract does not sanction the lack of sending a notice regarding time, as per 13.1. A sanction for not issuing a notice is the one from the Sub-clause 20.1, which says that if the Contractor fails to give notice of his claim within 28 days from when he knew or should have known about the event or circumstance giving rise to he claim, he shall lose his entitlement at time and/or money requested. There is no sanction for not giving a notice for the time under 13.1.
The Contractor can ask later for such time, either under Clause 13, or as a claim 20.1, in this case (20.1) the notice shall be given observing the 28 days rule from the time when the Contractor knew or should have known about the event or circumstance that generated his claim.
Hope it helps.
Best regards,
Alina

Construction Law

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Alina Valentina Oprea

Expertise

I can answer to questions regarding FIDIC 1999 contracts, including practical use of these conditions of contract, as well as to questions regarding dispute boards, both from theoretical and practical point of view. I cannot answer to questions related to other kind of contracts or to procurement process, except to some (limited) extent.

Experience

Implementation of works contracts (FIDIC 1999) financed by different financial institutions, including European Union; claims and disputes; dispute boards See more on www.alinaoprea.com

Organizations
Dispute Resolution Board Foundation

Publications
see http://alinaoprea.com/publications/ ; DRBF Forum Newsletter; Drumuri si Poduri; Revista Constructiilor; SIDiR Newsletter

Education/Credentials
Graduated the University of Civil Engineering Bucharest, Faculty of Railways, Roads and Bridges (1985-1990); Trained under Mr. Gwyn Owen’s pupilage program for arbitrators/adjudicators under FIDIC mentoring program (2006 – 2007)

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