Civil Engineering Reference
In-Depth Information
work can result in a re-rating of the entire
bills of quantities?
A contractor who has under-priced a project or who has been on the receiving end of many
architect's instructions often contends that the effect of all the instructions is to turn the
project into something entirely different from what the contractor priced in its tender. The
phrase used is usually that the instructions 'changed the whole scope and character of the
work'. If the variations have had this effect, the contractor would be right in its assertion
despite SBC clause 3.14, which empowers the architect to issue instructions requiring vari-
ations. Everything depends on what the parties expressed as their intentions in the contract.
One of the important reasons for the variation clause in a contract is to prevent the contract
being put at an end by an instruction to the contractor to alter or modify the Works in some
way; SBC clause 3.14.5 expressly so states. If there was no variation clause, an alteration to
the Works would necessitate agreement by both parties and perhaps a renegotiation of the
contract.
The usual example of changing the scope of the work has to do with a contract to build
one house; if the architect issued a variation to add another similar house, it would probably
vitiate the original contract because the scope of the work would have been doubled and the
contract would be markedly different from the one the contractor undertook to carry out. If,
however, the contract was to build one hundred houses and the architect issued a variation
to add one house, it would be unlikely to vitiate the contract because the scope would have
been increased by only 1 per cent; it would be the same contract with a minor variation to
theWorks.Obviously,anarchitect'sinstructionorseriesofinstructionswhichhadtheeffect
of altering an office into a factory would vitiate the contract.
Therefore, the answer to this question is 'Yes in principle'. However, in practice the situ-
ation will rarely arise. Even where the architect issues a substantial number of variations, a
contractor will find it difficult to argue that the whole scope of the Works has been changed.
that the contract was frustrated because of the large numbers of drawings which were is-
sued. The Court of Appeal held that it was not frustrated, because there was provision for
the variations to be properly valued and for the contractor to be recompensed for the delays.
Even where a housing contract in the sum of £126,000 was subsequently amended by vari-
ation to become a contract of £1.45 million, the court seems to have been unconcerned.
12
Admittedly,thereappeartohavebeensomeunusualfactorsinthatinstance,butitisthought
unlikely that a contractor's claim that the whole scope of the Works has been changed will
usually stand much chance of success.
