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Construction Law/OH & P for Contract Variation


Dear Florin,

We are currently working in a road project as a Main Contractor and  FIDIC 1999 refers. There is a Variation for LED Street lighting which we are going to do with lighting specialized sub Contractor. This sub-Contractor is not a Nominated Sub Contractor and this work is not to be executed under Provisional Sum where 15 % OH & P is specified in the Contract. Now the Engineer recommended 15 % while we have requested 25 % as all other Variations are paid. Please advise how this to be dealt with.
Thank you in advance for your response.

Dear Rohana,

Thank you for your question.

In absence of any specific agreement you may have had for the other VOs, all you can do, is to say that by continuously and consistently acting like that, i.e. using 25%, it was in fact implemented an agreement of the Parties and invoke the legal doctrine "the true will of the Parties", which I suspect is valid under the "Law of the Country".

That doctrine says that as long as Parties behaved in a certain way, regardless what is or what isn't written in the Contract, then that can be construed as the actual will of the Parties and that is what they wanted.

Further, you can explore why on other occasions it was accepted 25% for other VOs, but not now and see what is different, if anything at all.

Another tool would be if you have provided prices breakdowns, for various other prices, relevant eventually, where indeed you have indicated that OH & P are at 25%.

Hope these suggestions will help, good luck!

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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.


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.

Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers Former member of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List and of DRBF Chapter for Eastern Europe Former member of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List Member of “” volunteers pool Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States

- Graduate in 1994 the Construction Institute - Graduate of several FIDIC,Procurement and other courses - Graduate of first Disputes Board Members Mentoring Scheme ( - 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

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