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Construction Law/Variation under Sub-Clause 13.1

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Question
Dear Sir,

I am happy to see u back after 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
Dear Umer,

No vacation, just very busy and no spare time.  

I suggest that you look at the merits of his claim, rather than time barring it.  Time bars are problematic, especially when claims are based on the action or inaction of the Employer.  If the claim has no merit or there is insufficient justification, then reject it, giving reasons.  If the claim has merit and is fully justified, then grant it.  The intention of clause 20.1 is to allow the employer to mitigate any effects due to the Variation.  Look at clause 20.1 in the Gold Book.  

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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.

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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.
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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
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