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Construction Law/Commencement of Work under Variation


Hi Liaqat:
Would be grateful to receive your expert advise on the following question:
The Contractor is insisting on the approval of the variation in order to go ahead with the work. Instructions to proceed has been given but I cannot approve the variation without negotiating the rates as well as discuss with the Client which will take some time. However the work should proceed immediately to avoid delay to the project. Is the contractor within his right to refuse to start the work unless variation is approved? Or can the Engineer insist that the contractor should proceed with the work as per the Engineer's instruction without approval of the variation amount (rate). If so under what clause.
Many thanks in advance.
Best regards

Dear Suprio,

Thank you for your question. I am actually involved in the construction supervision of an Airport Project and I faced a similar problem and resolved it in the following manner. This is only to indicate how such maters can be tackled without much hue and cry.
i am assuming that you are working under FIDIC 1987 where Engineer's instruction can be verbally given but have to be reconfirmed by the Engineer in writing. If not confirmed, the Contractor can confirm the verbal instructions given and still no response is received, the verbal instructions becomes as good as in writing. The Contractor is supposed to put up his proposal as well as his proposed rates etc., after he has received your instructions in writing. So my first question is has he given his proposal in writing as without that how can you proceed and review his rates? The other thing that is important is that Contractor can not stop the work and he is duty bound to carry out Engineer's instruction with due diligence and without waiting for approval of his rates as per normal practice. With these comments, please let me know if this is all what you needed to be clarified.

Best Regards,
Liaqat Hayat  

Construction Law

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Liaqat Hayat


I can answer questions based on FIDIC 4 and FIDIC 1999 [design-build] with particular reference to time extension , price adjustment and disputes. I am in particular more inclined for response to points pertaining to how claims should be framed and put up in case of technical or other contractual shortcomings. Regarding procurement matters I have spent over 5 years as procurement specialist for highway authority and dealt with numerous claims and disputes in the capacity of "The Engineer" .

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