Variations

Abstract

When parties agree that a contract is to be implemented by a fixed date and by using specified methods, conduct by the employer which is authorised by the contract (e.g. issuing Variation orders, ordering extra work) surely cannot alter or nullify the agreed date for completion or other mutually agreed stipulations of the Contract. It is for that very reason that building contracts nowadays almost invariably contain express provisions making allowance for Variations. Under a FIDIC contract Variations are covered by Clause 13. The Clause covers both the authority of the Engineer and the Employer as well as the procedures for work being added, omitted, or changed from the original contract, either by initiative of the Contractor (Value Engineering) or the initiative of the Engineer. Also the effects of any Variation order on time and money are expressly stipulated. The Engineer’s power to issue instructions which constitute a Variation is often conditional on prior approval by the Employer. However, if there is any such restriction which must have been disclosed in the Particular Conditions and the Engineer issues an instruction which constitutes a Variation, the Contractor may rely on it, because according to Sub-Clause 3.1, whenever the Engineer exercises a specified authority for which the Employer’s approval is required, then the Employer shall be deemed to have given his approval.