Construction Law/Variations



I would like to know whether a Contractor can refuse to carry out additional quantity of any item mentioned in the BOQ.

For clarity if the BOQ says 1000 cmt of concrete, is the contractor legally/contractually bound to carry out the item beyond 1000 cmt or can he just refuse to carry out any additional quantity.

The contract is item rate re-measurable subject to Indian laws.



ANSWER: Dear Girish,

You do not state the form of contract, so the following comments are generic.  

Generally, the Contractor cannot refuse a properly constituted instruction from the Engineer, provided that the extra works come within the scope of the Contract.  That is the point of a remeasurable contract.  The employer takes the risk that the quantities are inaccurate and has to pay for any increases.  

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


Thank you for the prompt response. Is your above response applicable for the items that are not a part of the original BOQ?

The contract is bespoke one but largely a derivative of Fidic Red book 1999.



ANSWER: Dear Girish,

You do not say whether your contract was based on FIDIC 4 or FIDIC 99, so the following comments will be generic.  

I assume that the contract was awarded using transparent procedures and that the contract was awarded to the lowest compliant bid.  

If the item was not in the original BoQ, then the new rates must be based on the logic of the Contract, using the rates for resources, including OHP, that were used in the original contract.  

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


Thanks for the response once again. However, I meant to ask whether the Contractor can refuse to execute any item which is not a part of original BOQ but is instructed by the Engineer as a variation for a contract based on FIDIC 99



Dear Girish,

Provided that the works are within the original scope of the Contract, then generally the Contractor must comply with any legal instructions issued by the Engineer, even if the work covers an item which was not included in the original contract.  For example, if the Engineer issues instructions for a special road sign, which was not in the original contract for a road, then the Contractor must comply with the instruction, if there were some road signs included in the original contract.  However, if the Engineer issues an instruction for a new bridge, which was not included in the original contract for a road, when there were no bridges in the original contract, then the Contractor would be entitled to reject the instruction as not being in the original scope of the works.  

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Peter M. Elliott


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 before submitting a question.


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