Civil Engineering Reference
In-Depth Information
Manager has withheld acceptance of the Contractor's design submission under
clause 21.2, notwithstanding that the design complies with the Works Information
and applicable law.
4.5 Variations
4.5.1 General
The instruction of variations might be described as a right on the part of the employer
which imposes a corresponding obligation on the contractor to implement the vari-
ation so instructed and an obligation on the employer to pay for the work instructed
under the variation (though in some cases the variation can be an omission of work,
resulting in a reduction in the contract price). In general, neither of the parties to
a building contract has an implied right to vary the works on the basis that, having
entered into a contract to carry out certain works for a specific sum of money, the par-
tiesareentitled,andobliged,todonomorethantheyhaveoriginallycontractedtodo.
In reality, however, the work which was originally specified may have to be modified
for a variety of reasons such as unexpected ground conditions or other circumstances
which parties were not able to identify with any degree of certainty at the outset. This
is particularly so on a major building project. In addition, the employer may wish to
instruct thecontractor to carryout certain extra worksor,having discovereda quicker
or easier way of doing something, to omit certain works that were originally included
within the contract.
For these reasons, the contract, if in written form, will almost invariably entitle the
employer to vary the works and a contractor will be under an obligation to carry out
or omit works in accordance with a variation instruction and in accordance with the
variation procedure specified in the contract. This procedure will normally specify
the contractor's right to be paid for the work and the basis for valuing such additional
payment and the contractor's entitlement to an extension of time if completion of the
works is delayed as a result of the additional work instructed.
The contract will also usually define what may be covered by a variation. At the very
least,thiswillextendtoachangeinthescopeoftheworks,butdependingontheterms
of the contract, a variation may also extend to the imposition of additional working
restrictions on the contract, which may not involve additional work but which may
increase the cost of carrying out the original scope of work by changing the assump-
tionsmadebythecontractorinitspricing.hiscouldincludesuchmattersasreducing
accessroutestoandfromthesite,limitinghoursofworking,orimposingnoiserestric-
tions. If the definition of variation is sufficiently widely expressed in the contract, it
could even go so far as to permit the employer to change the conditions of contract. In
short, the scope of the variation which the employer may instruct is determined by the
terms of the contract. In its most commonly used sense, a variation is a change in the
scope of the contract works and will lead to an adjustment of the contract price. How-
ever, it is not always immediately obvious whether there has indeed been a change in
the original scope. Any work which the contractor is either expressly obliged to do in
terms of the contract, or which is necessary by implication, falls within the contractual
