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Construction Law/Instructed Variation

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Question
Dear Sir

1999 FIDIC Red Book

According to the SCL 13.1(e), any additional work instructed by the engineer shall be necessary for the Permanent Works.

If the instructed additional work is not necessary for the Permanent Works, then whether the contractor can object to execute or alternatively request for the different rates from the current BOQ.

For example, initial scope of work is only construct a building and then the engineer instructed do the swimming pool as a variation.

Could give your comment in line with SCL 13.1(e) .

Br

Sudantha

Answer
Dear Sudantha,

Thank you for this question.

"Permanent Works" is a defined term under the FIDIC contract an refers to the rows to be executed by the Contractor under the Contract. Whether, in your case, the swimming pool will be considered as a part of the permanent works will be a matter of interpretation of how the contract documents were written. You have not described the nature of the project so I will provide examples.

If the project is a leisure centre a swimming pool would be more often part of the scope of work than if the project was for a private dwelling.

I tend to agree with your interpretation that if the permanent works does not need the swimming pool, then its instruction as a variation order will be questionable.

As to how the work would then be valued, if successfully argued that the swimming pool should not be considered as part of the permanent works as originally specified then the contract rates ought not to be applicable. Irrespective of whether it is deemed part of the permanent works, if the contract rates and process are adopted that will, following the normal rules of valuation, those rates can be adjusted to reflect differences in working conditions.


I hope that this assists you.

Kind regards,
John Dowse

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John Dowse

Expertise

Legal; contract interpretation; quantum; delay analysis. Practitioner in arbitration, adjudication and mediation.

Experience

Thirty-three (33) years experience in building and construction, at all levels both within contracting and consulting organisations. Practising arbitrator, adjudicator, and mediator. Faculty approved trainer for the Chartered Institute of Arbitrators. Lecturer on construction contract forms and dispute resolution practices.

Organizations
Chartered Institution of Civil Engineering Surveyors Chartered Institute of Arbitrators Institute of Directors Society of Construction Arbitrators

Publications
Various UK and International construction and legal publications.

Education/Credentials
LLB (Hons), Pg Dip (Legal Practice), MCInstCES MCIArb MIOD Barrister

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