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. I have given the instructions to the Contractor to install light fixtures for underpass structures naming the make and type of the fixture. The Contractor has sent me the cost of the variation with the quotation of the supplies plus his own additional costs for fixing , etc. and is asking me to approve the variation before whe will proceed for procurement. 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). I understand that contractor should proceed with the work but is there anything in FIDIC (1987) to compel him to do so?
Many thanks in advance.
In the case of any variation Engineer has the power to instruct for the variation. Then Contractor has to submitt his intention under the variation. Engineer has the power to evaluate and fix the price with mutual discussion with Employer and the contractor.
Under the contract, Contractor has no power to refuse any instructions and he has to fulfil the conditions of general obligations under the contract.The Contractor shall, with due care and diligence, execute and complete the Works in accordance with the provisions of the Contract.
Contract does not provide any liberty to deny any work with out resonable cause otherwise action may be initiated against him. On other hand Engineer can not take or compel to contractor to proceed with varied work if any huge amount involve with out finalisation of rate by the Engineer in consultation with Employer and Contractor.
I hope this will help to you.