Construction Law/Variation

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Question
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,

Sorry, but clause 13.1(e) is in the possible class, not in the mandatory class.  The list is not intended to be inclusive, so the Engineer could instruct a swimming pool as part of a residential building.  Any variation in the rates is covered by clause 12.3.  

---------- FOLLOW-UP ----------

QUESTION: Dear Sir

In your answer you have mentioned a "possible/mandatory class"; could you explain what is mean by "possible/mandatory class" and what are the SCLs include to the same?

Br

Sudantha

Answer
Dear Sudantha,

You write 'shall be necessary'.  Clause 13.1 states 'Each Variation may include ..... any additional work, Plant, Materials or services necessary for the Permanent Works'.  'Shall' is mandatory and must be obeyed, while 'may' could be followed and thus is a possibility.  Clause 13.1 gives a list of reasons for a variation, but the list is not exhaustive.  Thus the list is a list of possible reasons for a variation but there can be other reasons, beyond those given in the list.  

Construction Law

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Peter M. Elliott

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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 www.eotprotocol.com before submitting a question.

Experience

Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
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')

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

Education/Credentials
B Sc(Hons) in Civil Engineering

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