Employers’ Obligations - Scottish Construction Contracts - page 101

made allowance in programming, planning and pricing in relation to defined work.
For further details in respect of the procedures in respect of Variations under the SBC
and the SBC/DB, see Sections 5.2.2, 8.2.3 and 8.2.4.
The SBC recognizes that a quantity in the bills of quantities may be identified as
an approximate quantity, and where such a quantity is so identified and turns out not
to be a reasonably accurate forecast of the quantity of work required, clause 2.29.5
provides a right to extension of time and clause 4.24.4 to loss and expense.
The NEC3 deals with changes in a typically concise way. Clause 60.1(1) provides
that it is a compensation event (giving rise to both extension of time and costs) if the
Project Manager gives an instruction changing the Works Information, except where
the change is to accept a defect or is a change to the Works Information provided by
the Contractor for his design which is made either at his request or to comply with
other Works Information provided by the Employer. Clause 61.2 permits the Project
Manager to instruct the Contractor to submit quotations for a proposed instruction
andinthateventthepositionwillberegulatedbytheprocedureforquotationsfor
compensation events set out in clause 62. The rules for assessing the financial and
time consequences are set out in clauses 63 and 64.
For more detail on the procedures for assessment of compensation events and for
such quotations, see Sections 5.2.4 and 8.2.5.
There are also circumstances which may give rise to works being deemed a Vari-
ation in the SBC. Clause 2.14.3 of the SBC provides that the correction of an error
in the bills of quantities or an inadequacy in the design shall be treated as a Varia-
tion. Clause 2.14.2 of the SBC/DB provides that where there is a discrepancy in the
Employer's Requirements which is not dealt with in the Contractor's Proposals, and
as such requires to be amended or otherwise dealt with, such amendment or decision
shall be treated as a Change.
The employer cannot vary the contract to the extent that it alters the fundamental
nature of the contract works, see McAlpine Humberoak Ltd v. McDermott Interna-
tional Inc (1990). Nor can he vary the contract by omitting large aspects of it and then
employinganothercontractortocarryoutthework.hatwillamounttoarepudiation
which, in turn, entitles the contractor to rescind and seek damages, see Commissioner
for Main Roads v. Reed & Stuart Pty Ltd (1974). Contracts so far varied as to make
them fundamentally different from that contracted for may give rise to a claim for pay-
ment quantum meruit ,see ERDC Construction Ltd v. H M Love&Co (1995). Quantum
meruit is considered in Section 8.4.
Although under the SBC there is a requirement for variation instructions to be in
writing, this may be waived in certain circumstances. Examples of such circumstances
are: where the work is of such a different character or nature that it is said to be outside
the terms of the contract and forms a separate contract; where the main contract is no
longer operative; where the final certificate has been issued including a sum for the
variations and there is no opportunity for review of this; where an arbitrator is given
the power to consider whether the work is or is not a variation and he decides that the
work done was a variation; or where, for any other reason, the employer is personally
barred from insisting, or has waived his right to dispute, that something was properly
a variation where the instruction was not in writing.