Construction Law/Omission



According to the 1999 FIDIC Red Book, if the Engineer issued an instruction to omit any Work, then either Sub-Clause 12.4 or 13.3 shall be followed.

Could you explain with reason.

ANSWER: Dear Sudantha,

I do not understand your question as both clauses appear to be consistent with each other.  One is used where there is a prior notice by the Engineer and one where there is no prior notice, but in both instances, the Contractor has to give justification of his claim for reimbursement.  

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My question is for the instruction of omission, why there are two Sub-Clauses 12.4 or 13.3, both the Sub-Clauses define the procedure for the omission.

Could you explain with the examples of application of these Sub-Clauses.



ANSWER: Dear Sudantha,

With reference to clause 12.4, Since Sub-Clause 13.3 concludes by referring to Variations being valued under Clause 12, and the quantity (for the purposes of Sub-Clause 12.3) of an omitted item is zero, Clause 12 concludes by entitling the Contractor to compensation for the costs reasonably incurred in the expectation of carrying out work subsequently omitted under the Variation.
The Sub-Clause refers to the word "cost" in its usual usage, rather than to "Cost".  The significance of this point is best illustrated by a typical example. If the Contractor had ordered formwork for work which was subsequently omitted by Variation, the Accepted Contract Amount would typically have included direct cost plus profit in respect of this formwork. The Contractor would then be entitled to recover cost and profit. However, if the Employer was thus required to pay for the full cost of an item, he may also be entitled to recover it as his property.  

With reference to Clause 13.3, a proposal under Sub-Clause 13.3(a)-(c) may be requested, in an endeavour to reach prior agreement on its effect and thereby minimise dispute. This "request" would typically not constitute a Variation, unless it is an "instruction". Again, the proposal may be approved as a Variation, or other instructions may be issued which constitute a Variation.  The Contractor is not obliged to comply with a "request", but he is required to respond, which may or may not show his ability to perform the work included in the request, and the cost and time effect thereof.

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I think Sub-Clause 12.4 stipulates the evaluation of abortive work, that is the work was included in the original scope of work and subsequently omitted by the client. However at that time the contractor already partially done or completed the work.

Please confirm.

Dear Sudantha,

Most clients would be well advised to avoid omitting partially done or completed work, due to the extra costs of removal.  Generally, the instruction is given in good time and costs are restricted to the costs of materials which cannot be used elsewhere.

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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.


Value . . .
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Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

B Sc(Hons) in Civil Engineering

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