Variations - Building Contract Claims - page 309

of clause 3.7.4 [similar to the last few lines of clause 13.5.1 of JCT 98] make
it clear that due allowance for any change in conditions is made only
where the work has not been modified other than in quantity so that the
character of the work itself must remain unchanged.' 585
The ordinary meaning of 'similar' would be 'almost but not precisely the
same' or 'identical save for some minor particular' 586 . The words 'similar
character' when applied to an individual measured item of work probably
mean that the item is virtually identical to an item in the contract bills. If the
item is of 'similar character' the only grounds upon which the quantity
surveyor can vary the price for the item from that which is set out in the
bills is that the conditions are not similar or the quantity has significantly
changed, otherwise he must use the price in the bills as it stands. 'Similar'
must be read in context. It appears that very little change in description
would be needed to render the character of work dissimilar for the purpose
of this clause. Then, the rules set out in clauses 13.5.1.1 and 13.5.1.2 cannot
be applied and the quantity surveyor is given the unfettered discretion
under clause 13.5.1.3 to value the item at a 'fair' rate or price.
It is probably necessary to investigate beyond simple matters of
description or measurement in determining whether the rates and prices
in the bills are to be set aside and a valuation at 'fair rates and prices'
substituted.
In respect of 'conditions', of course, it is not necessary to apply the
same strict interpretation to the word 'similar'. The 'character' of an
item is precisely defined by its verbal description in the bills; the 'condi-
tions' under which it is to be carried out cannot be so precisely defined,
and the question of whether the conditions are 'similar' must be judged by
vaguer criteria related to the conditions under which the contractor must
be deemed to have anticipated that the work in the original bills would
be carried out and those under which the varied work actually was
carried out. The 'conditions' referred to in the valuation rules are the
conditions to be derived from the express provisions of the contract
bills, the drawings and other documents. The quantity surveyor is not
entitled to take into account the background against which the contract
was made 587 .
The word 'similar' is not used in connection with quantity, the criterion
here being whether or not the quantity had been 'significantly changed' by
the variation. This must be a matter for the objective judgment of the
quantity surveyor; a small change in quantity may be significant for some
items (particularly where the original quantity was small) but a very large
change may not be significant for others. No firm rules can be laid down.
No matter how erroneous the rate or price can be demonstrated to be,
whether in respect of its being too high or too low, the rate or price in the
585 Neil F. Jones & Simon Baylis, Jones & Bergman's JCT Intermediate Form of Contract , 3rd edition, 1999,
Blackwell Science, p.172.
586 David Chappell, Derek Marshall, Vincent Powell-Smith and Simon Cavender, Building Contract
Dictionary , 3rd edition, 2001, Blackwell Publishing, p.159.
587 Wates Construction (South) Ltd v. Bredero Fleet Ltd (1993) 63 BLR 128.