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Construction Law/Variation under Sub-Clause 13.1

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QUESTION: 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?

Regards,

UMER SHABBIR

ANSWER: Dear Umer,


Thank you for your question.

You should indeed have issued a Notice of Claim, under 20.1, asking for an EoT. That Sub-Clause says clearly that if no such notice issued, all rights are lost.

But you can try however, to issue such a Notice now and pursue with a disputes, finally referred to the DAB.

It will be on you to demonstrate and convince the DAB on why such Notice has not been issued. Reasons as "we were too busy", will not work.

Reasons must show you were in an impossibility to issue the Notice, or likewise, but sure enough, don't count on DAB empathy.

Slim chances, but depending on expected outcome you may try.

Good luck!



---------- FOLLOW-UP ----------

QUESTION: Thanks for the valuable comments.

As you mentioned that chances of EoT Claim under Sub-Clause 20.1 GCC are slim. But is there any chance for determining EoT under Sub-Clause 13.3 GCC because Sub-Clause 8.4 states "unless an adjustment to the Time for Completion has been agreed under Sub-Clause 13.3". I noted that this adjustment to Time for Completion was in accordance with the Contractor's proposal at stated in Sub-Clause 13.3 (b) which can be agreed by the Engineer. but it our case not proposal was requested by the Engineer instead an instruction to execute the varied work was only given. My question is that is there any chances for evaluation of the variation to be made at the later stage under Sub-Clause 12.3 which subsequently matter refers to Sub-Clause 3.5 GCC as there is not time bar for evaluation of variation is mentioned in the Clause 13.3?

Please advice. I will be happy to receive your comments in this regard.

Regards,

UMER SHABBIR

Answer
Dear Umer,


Thank you for coming back, I liked that inventive approach. But:

For getting an EoT, as provided for, under 8.4, based on 13.1/ 13.3, you must have issued a Notice of Claim under 20.1.

8.4 clearly reads: "The Contractor shall be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to an extension of the Time for Completion".

As for 12.3, that is evaluation of value of executed works, or likewise, not evaluation of time.

Hence, based on available information, I can only suggest to gamble your chances and go ahead asking for an EoT, or eventually for failure of Engineer to issue a VO.

Good luck!

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Florin NICULESCU

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Questions related to Civil Engineering Contracts, using FIDIC or other Conditions of Contract, concerning Procurement procedures and documents (pre-qualification, tendering and contracting) and Services/ Works Contracts implementation matters including Determinations, Payments, Time Extensions, VOs, Claims/Disputes. Additionally, questions related to dealing with International Financing Institutions. Can also answer questions in Romanian. Can not answer improperly formulated questions.

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Over 20 years of experience in the field of design, works supervision, construction, management of aid funds and technical assistance for various types of contracts implementation, including severe conflictual contractual situations leading to Claims and disputes. Claims/ Contract management, Disputes adjudication, Arbitration.

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Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers www.aric.org Former member of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List www.drb.org and of DRBF Chapter for Eastern Europe http://dabdrb.googlepages.com Former member of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List http://www.sidir.pl/sidir/index.php?action=czlonkowie&a2=r Member of “AllExperts.com” volunteers pool http://www.allexperts.com/user.cgi?m=4&expID=85358&catID=914 Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States www.constructiondisputes-cdrs.com

Education/Credentials
- Graduate in 1994 the Construction Institute - Graduate of several FIDIC,Procurement and other courses - Graduate of first Disputes Board Members Mentoring Scheme (http://www1.fidic.org/resources/adjudicators/pupilage.html) - FIDIC Accredited Adjudicator

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- Several State organisations/Ministries , such as Ministry of Transport, National Admistration of Roads, Ministry of Regional Development (former Ministry of European Integration), Public Works and Housing, Central Contracting and Financing Unit in Romania and also in Turkey, Croatia and Macedonia - Numerous Western based private consultancy companies - full CV and other relevant information available at www.abinitio.ro

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