Construction Law/Varied Works
My question is related to the additional cost, incurred for a certain activity (auxiliary), such that this activity was imposed and required to be carried out due to a varied work to the permanent scope of Works.
The contractor was instructed to construct concrete parapet wall (cast-in-place) of a certain dimension on dam crest, for which the Contractor and the Engineer mutually agreed to design a special formwork (sliding type of steel) according to the tender design.. The Contractor started fabrication and after completion of 9 sets of formwork, the Engineer changed the original design of parapet wall (saving quantities), which required the Contractor to modify the previously fabricated sets again according to the new design.
(Please note that the formwork is payable in square meter under its respective BoQ item in the Contract.)
This design change of parapet wall (reducing the height and base width) was instructed in the form of revised construction drawings, which is considered to be a variation under Sub-Clause 13.1 of GCC (The Contract is administered under FIDIC 1999 Red Book).
Now my question is, whether the Contractor shall:
i. pursue this issue and give notice under Sub-Clause 1.9 [Delayed drawings or instructions] and claim the additional cost under Sub-Clause 20.1 of GCCC, or
ii. request the Engineer for the issuance of variation order under Sub-Clause 13.1 of GCC (though this additional cost is not for a permanent item such as concrete or steel etc., but for formwork which is removed).
We have already pursued this issue under the option (ii), but if at this stage the Engineer does not agree to a variation order, then how the Contractor can claim this additional amount under Sub-Clause 1.9 and 20.1 of GCC, when the time has passed more than the stipulated limit of 28 days for notice as required under Sub-Clause 20.1.
Please advise and assist in this regard.
Sub-clause 1.9 is referring to delayed drawings or instructions and has a procedure inside which apparently you did not follow.
Since you asked for a variation and the Engineer refuse to do it you have 28 days notice from the date when the Engineer stated (in writing) that he does not want to issue a variation to issue a notice of claim stating that you disagree with the Engineer's evaluation. This will not bring you too much since probably the Engineer will reject your claim.
Another solution is to go directly to DAB and declare a dispute and ask DAB's decision based on the fact that you do not agree with the Engineer's opinion.
Hope it helps