Variations - Building Contract Claims - page 335

does not simply mean the drawings, but also the written part of the Con-
tractor's Proposals such as specifications and schedules of work 607 . Every
change will involve an amendment to some item in one of these documents.
This clause, therefore, effectively gives the contractor the right of veto over
any change if he cares to use it.
Clause 7 - Site boundaries
Clause 7, with admirable brevity, states that the employer must define the
boundaries of the site. The employer has no power to change the definition
once it is made, but clause 2.3.1 makes clear that if there is a divergence
between the definition and the Employer's Requirements, the employer
must issue an instruction to correct it. The instruction is then deemed to
be a change issued under clause 12.3 for the purposes of adjustment to the
contract sum. Clause 2.3.2 states that if the employer or the contractor finds
a divergence, either must give the other a written notice. It may be argued,
therefore, that if the contractor fails to spot a divergence which objectively
should have been obvious and fails to give notice, he will be unable to
recover any resultant expense incurred in correcting the divergence. How-
ever, it is clear from the wording of the clause that the contractor has no
obligation to look for or find divergencies, merely to give notice if he finds
any 608 . In this instance, the contractor's obligation is expressly the same as
that of the employer. A better view is that it is for the employer to provide a
correct definition.
Clause 12.3 - Provisional sums
The employer may include provisional sums in the Employer's Require-
ments to cover works for which the contractor is not required to make
proposals at tender stage. This may be because it is not practicable to do
so, because the employer wishes to keep some significant part of the work
under his control, or for some other reason. The issue of instructions
regarding the expenditure of such sums is an obligation. It should be
noted that there is no provision for the inclusion of provisional sums in
the Contractor's Proposals and any such sum must be transferred to the
Employer's Requirements before the contract is executed or the employer
will be powerless to deal with them.
Clause 12.4 - Valuation of changes
There is no provision in this contract for the valuation of changes by a
quantity surveyor. There is provision for the contractor to submit a price
statement under clause 12.4.2 (alternative A) and this is the method which
607 John Mowlem & Co Ltd v. British Insulated Callenders Pension Trust Ltd (1977) 3 Con LR 63.
608 London Borough of Merton v. Stanley Hugh Leach Ltd (1985) 32 BLR 51.