Variations - Building Contract Claims - page 342

cation the Architect shall consider whether it is fair and reasonable to
revise the Contract Fee. If the Architect does so consider and the
Employer has confirmed in writing to the Contractor his agreement
to such revision, the Architect, or, if so instructed by the Architect, the
Quantity Surveyor, shall after consultation with the Contractor make
an appropriate revision to the Contract Fee; and shall decide the date
from which the revised Contract Fee shall be applicable.
13.9.2 Commentary
Since all the work carried out under this kind of contract is uncertain, the
architect must issue instructions under clause 3.3.2 for all the work required
to be carried out even though it is already shown on drawings and specifi-
cations. Therefore, there are no variations in the ordinarily understood sense
of the word. The architect can change the work only by means of a variation
in the nominated sub-contract or by an instruction on the expenditure of
provisional sums. Essentially, therefore, the valuation of variations takes
place at sub-contractor level, because the employer pays the prime costs of
sub-contract work.
Clause 3.3.3 entitles the contractor to refuse to comply with an architect's
instruction in two specific situations. The first is similar to clause 13.1.2 of JCT
98. It covers instructions imposing obligations or restrictions on access or use
of the site, working space, hours or sequence of work or changes to any such
obligations or restrictions which are already in the specification. The second
deals with any situation where the architect issues an instruction which alters
the nature and scope of the works as stated in the first schedule. The con-
tractor is only entitled to refuse to comply to the extent that he makes
reasonable objection in writing and it must be made as soon as reasonably
practicable; for example, an instruction restricting the contactor's use of the
site might seriously hinder the progress of the works.
Clause 3.4 addresses instructions which alter the nature and scope of the
works. The wording is curious. If the contractor has not made reasonable
objection or if he has made reasonable objection and it has not been accepted,
the second part of the clause takes effect. Presumably it is the architect who
accepts or otherwise the contractor's reasonable objection. It is hard to
understand this. Clause 3.3.3 gives the contractor the right to withhold
compliance with such an instruction 'to the extent that he makes reasonable
objection . . . '. The curious part about clause 3.4 is that it does not refer to
the architect's acceptance of the reasonableness or otherwise of the contract-
or's objection. It would be perfectly sensible to consign that decision to the
architect as the professional agreed between the parties as certifier. The
clause actually refers to the acceptance or non-acceptance of the contractor's
reasonable objection, because it refers to ' such objection' and the only 'objec-
tion' to which that can refer is the 'reasonable objection'. This strange provi-
sion immediately raises the question of the grounds on which the architect
could refuse to accept an objection which was manifestly reasonable or, at