Variations - Building Contract Claims - page 302

By what criteria is 'reasonable objection' to be measured? It is thought that
an objection would only be considered reasonable to the extent that the
contractor should be relieved of the obligation to comply with it if compli-
ance would make the work impossible or, at least, unduly onerous. Say, for
instance, that the architect ordered that noisy machinery should not be used
except between certain specified hours, and that the reason for the instruc-
tion was that a neighbour had threatened to obtain an injunction against the
employer imposing such a restriction upon him; clearly no contractor could
'reasonably' object to compliance with such an instruction since he would be
protected as to additional expense and a suitable extension of the time
under the contract terms, and non-compliance could well result in severe
penalties for the employer. But a contractor could 'reasonably' object to an
instruction restricting access to the site if the restriction would mean that
essential goods could no longer be brought on to the site; in such a case the
contractor's objection would bring the problem to the architect's attention
and he could, no doubt, order further variations to the works which could
overcome the problem - or withdraw the instruction.
Variation instructions
Clause 13.2 constitutes the architect's authority to issue instructions requir-
ing a variation within the definition set out in clause 13.1, and also author-
ises him to 'sanction in writing any Variation made by the Contractor
otherwise than pursuant to an instruction of the Architect'. It also states
that 'No variation . . . shall vitiate this Contract', an injunction the purpose of
which is slightly obscure, since the exercise of a power expressly conferred
upon the architect by the terms of the contract cannot 'vitiate' it in any
circumstances.
Clause 13.3 states that the architect shall issue instructions in regard to the
expenditure of provisional sums, both in the contract bills and in a Nomin-
ated Sub-Contract.
Clause 4.1.1 (set out in part earlier in this section) requires the contractor
'forthwith' to comply with any instruction issued by the architect which the
contract conditions expressly empower him to issue. Clauses 13.2 and 13.3,
therefore, set out this express power of the architect to issue instructions
requiring variations and in regard to the expenditure of provisional sums,
the latter being not only a power but an obligation as well. The contractor
must therefore comply with any such instructions 'forthwith', subject to the
proviso regarding reasonable objection to instructions about variations in
obligations or restrictions imposed upon the contractor. 'Forthwith' in this
context clearly does not necessarily mean 'immediately' since the instruc-
tion may vary work not yet done, but it imposes an obligation upon the
contractor to carry out the work as soon as he reasonably can do so 583 .
583 London Borough of Hillingdon v. Cutler (1967) 2 All ER 361.