Types of Claim - Construction Claims and Responses: Effective Writing and Presentation - page 14

' Sub - Clause 3.3
Instruci ons of
the Engineer

The Engineer may issue to the Contractor (at
any i me) instruci ons and addii onal or modi-
fi ed Drawings which may be necessary for the
execui on of the Works and the remedying of
any defects, all in accordance with the Contract.
The Contractor shall only take instruci ons from
the Engineer, or from an assistant to whom the
appropriate authority has been delegated under
this Clause. If an instruci on consi tutes a varia-
i on, Clause 13 ( Variai ons and Adjustments)
shall apply. '

How does the Contractor therefore ensure that he is compensated
properly in a case where he considers that he has an entitlement to addi-
tional payment for an instruction which he considers comprises a variation,
but which has not been instructed or approved as a variation order?
Firstly, the Contractor should acknowledge receipt of the instruction and
confi rm that he considers the instruction to be a variation under the provi-
sions of Sub-Clause 13.3 ( Variations and Adjustments) . The Engineer may
agree with this and, if so, he should issue a variation order as confi rmation.
If no such confi rmation is forthcoming or if the Engineer disagrees, then
the Contractor's recourse under FIDIC is contained in the provisions of
Clause 20 ( Claim, Disputes and Arbitration ) which has this to say:

' Sub - Clause
20.1
Contractor ' s
Claims

If the Contractor considers himself to be eni tled
to any extension of the Time for Complei on and/
or any addii onal payment, under any Clause of
these Condii ons or otherwise in conneci on with
the Contract, the Contractor shall give noi ce to
the Engineer, describing the event or circum-
stance giving rise to the claim. The noi ce shall be
given as soon as praci cable, and not later than 28
days at er the Contractor became aware, or should
have become aware, of the event or circumstance.