Presents 1.

Variations and Valuation of “varied work” under

FIDIC – 4th Edition, 1987
Variations, &
Valuation of “varied work” 2. Variations and Valuation of Variations under FIDIC
– First Edition, 1999

under FIDIC – 4thh 1987 .

3. Extension of Time & Prolongation Costs under
by FIDIC – 4th Edition, 1987
Prof.
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Samaratunga
S amaratunga
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FRICS,
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FAIQS
QS, FIQS(SL),
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FCIArb
FCIA
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rb,, FC
rb FCIOB, FCMI,
F FIAS,
S, FCA
FCABE
FCABE
(Chartered Surveyor/Chartered
ed Manager/Chartered
age tered Building
ng Engineer/
Eng 4. Extension of Time & Prolongation Costs under
Chartered Constructio
Construction
ructio
tion
tionMManager/Chartered
/Ch Quantity
uan Surveyor)
urveyo
Arbitrator / Mediatorr - Lo
London
nd Court
ou of International
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Arbitration
ion FIDIC – First Edition, 1999
Arbitrator / Expertt - Dubai International Arbitration Centre
Ex Middle East Representative
e - Australian Institute of Quantity Surveyors

51.1 The Engineer shall make any variation of the form, quality or quantity of the
Works or any part thereof that may, in his opinion, be necessary and for that
Question purpose, or if for any other reason it shall, in his opinion, be appropriate, he
shall have the authority to instruct the Contractor to do and the Contractor
In a lump sum Contract (where the Works would not be re-measured), shall do any of the following:
the Drawings show 200 m of boundary wall, but it is given in the Bill of (a) increase or decrease the quantity of any work included in the Contract,
Quantities (by the Employer), and priced (by the Contractor) as follows: (b) omit any such work (but not if the omitted work is to be carried out by the
Employer or by another contractor),
(c) change the character or quality or kind of any such work,
Boundary Wall 100 m 100/= 10,000 . 00 (d) change the levels, lines, position and dimensions of any part of the Works,
(e) execute additional work of any kind necessary for the completion of the
Works, or
A variation has been instructed to delete the whole of the boundary
wall. Which of the following options would you use in the valuation of (f) change any specified sequence or timing of construction of any part of the
Works.
this variation:
No such variation shall in any way vitiate or invalidate the Contract, but the
(1) - 100 m @ 100/= = - 10,000 . 00 ? effect, if any, of all such variations shall be valued in accordance with Clause
52. Provided that where the issue of an instruction to vary the Works is
(2) - 200 m @ 100/= = - 20,000 . 00 ? necessitated by some default of or breach of contract by the Contractor or for
(3) - 200 m @ 50/= = - 10,000 . 00 ? which he is responsible, any additional cost attributable to such default shall
be borne by the Contractor.
 6WH
51.2 The Contractor shall not make any such
W ho - Employer?, Contractor?, Engineer?, Third Parties? variation without an instruction of the
W hat - The contract?, The Works? Engineer. Provided that no instruction
Engineer
W hen - Before/After Compl. Date, Before/After Acceptance shall be required for increase or
W hich - Form, Quality, Quantity of the Works. 51.1(a) to (f) decrease in the quantity of any work
W hy - Nec./App., E’s needs, C’s fault, site/design where such increase or decrease is not
W here - 51.1, 5.2, 7.1, 13.1, 18.1, and “varied work” the result of an instruction given under
How - Written/Oral Instructions, 51.2, 2.5, Drawings
this Clause, but is the result of the
quantities exceeding or being less than
those stated in the Bill of Quantities.

Terminology 49.2 To the intent that the Works shall, at or as soon as

practicable after the expiration of the Defects Liability
contract - mutual promise (legally binding) Period, be delivered to the Employer in the condition
required by the Contract, fair wear and tear excepted, to
Contract - documents defined in the the satisfaction of the Engineer, the Contractor shall:
General Conditions of Contract
(a) complete the work, if any, outstanding on the date
stated in the Taking-Over Certificate as soon as
practicable after such date, and

(b) execute all such work of amendment, reconstruction,

and remedying defects, shrinkages or other faults as the
Engineer may, during the Defects Liability Period or
within 14 days after its expiration, as a result of an
inspection made by or on behalf of the Engineer prior to
its expiration, instruct the Contractor to execute.
49.3 All works referred to in Sub-Clause 49.2 (b) shall be executed by
the Contractor at his own cost if the necessity thereof is, in the 5.2 The several documents forming the Contract are to be taken as
opinion of the Engineer, due, to: mutually explanatory of one another, but in case of ambiguities
or discrepancies the same shall be explained and adjusted by the
(a) the use of materials, Plant or workmanship not in accordance Engineer who shall thereupon issue to the Contractor instructions
with the Contract, thereon and in such event, unless otherwise provided in the
Contract, the priority of the documents forming the Contract
(b) where the Contractor is responsible for the design of part of shall be as follows:
the Permanent Works, any fault in such design, or
(1) The Contract Agreement (If completed);
(c) the neglect or failure on the part of the Contractor to comply (2) The Letter of Acceptance;
with any obligation, expressed or implied, on the Contractor’s
(3) The Tender;
part under the Contract.
(4) Part II of these Conditions;
If, in the opinion of the Engineer, such necessity is due to any
(5) Part I of these Conditions; and
other cause, he shall determine an addition to the Contract Price
in accordance with Clause 52 and shall notify the Contractor (6) Any other document forming part of the Contract.
accordingly, with a copy to the Employer.

13.1 Unless it is legally or physically impossible,

7.1 The Engineer shall have authority to the Contractor shall execute and complete
issue to the Contractor, from time to the Works and remedy any defects therein
time, such supplementary Drawings and in strict accordance with the Contract to the
instructions as shall be necessary for the satisfaction of the Engineer. The Contractor
purpose of the proper and adequate shall comply with and adhere strictly to the
execution and completion of the Works Engineer’s instructions on any matter,
whether mentioned in the Contract or
and the remedying of any defects therein.
not, touching or concerning the Works.
The Contractor shall carry out and be The Contractor shall take instructions only
bound by the same. from the Engineer (or his delegate).
 52.1 All variations referred to in Clause 51 and any additions to the
Contract Price which are required to be determined in
18.1 If, at any time during the execution accordance with Clause 52 (for the purpose of this Clause
of the Works, the Engineer requires referred to as “varied work”), shall be valued at the rates and
prices set out in the Contract if, in the opinion of the Engineer,
the Contractor to make boreholes or the same shall be applicable. If the Contract does not contain
to carry out exploratory excavation, any rates or prices applicable to the varied work, the rates and
prices in the Contract shall be used as the basis for valuation so
such requirement shall be the subject far as may be reasonable, failing which, after due consultation
of an instruction in accordance with by the Engineer with the Employer and the Contractor, suitable
rates or prices shall be agreed upon between the Engineer and
Clause 51, unless an item or a the Contractor. In the event of disagreement the Engineer shall
Provisional Sum in respect of such fix such rates or prices as are, in his opinion, appropriate and
shall notify the Contractor accordingly, with a copy to the
work is included in the Bill of Employer. Until such time as rates or prices are agreed or
Quantities. fixed, the Engineer shall determine provisional rates or prices to
enable on-account payments to be included in certificates
issued in accordance with Clause 60.

17.1 The Contractor shall be responsible for:

(a) the accurate setting-out of the Works in relation to original points, lines and 20.3 In the event of any such loss or damage
levels of reference given by the Engineer in writing, happening from any of the risks defined in
(b) the correctness, subject as above mentioned, of the position, levels, Sub-Clause 20.4, or in combination with other
dimensions and alignment of all parts of the Works, and
risks, the Contractor shall, if and to the extent
(c) the provision of all necessary instruments, appliances and labour in
connection with the foregoing responsibilities. required by the Engineer, rectify the loss or
If, at any time during the execution of the Works, any error appears in the damage and the Engineer shall determine an
position, levels, dimensions or alignment of any part of the Works, the
Contractor , on being required so to do by the Engineer, shall, at his own cost,
addition to the Contract Price in accordance
rectify such error to the satisfaction of the Engineer, unless such error is based with Clause 52 and shall notify the Contractor
on incorrect data supplied in writing by the Engineer, in which case the
Engineer shall determine an addition to the Contract Price in accordance with accordingly, with a copy to the Employer. In
Clause 52 and shall notify the Contractor accordingly, with a copy to the the case of a combination of risks causing loss
Employer.
or damage any such determination shall take
The checking of any setting-out of any line or level by the Engineer shall not in
any way relieve the Contractor of his responsibility for the accuracy thereof into account the proportional responsibility of
and the Contractor shall carefully protect and preserve all bench-marks, sight-
rails, pegs and other things used in setting-out the Works.
the Contractor and the Employer.
 49.3 All works referred to in Sub-Clause 49.2 (b) shall be executed by
31.2 If, however, pursuant to Sub-Clause 31.1 the the Contractor at his own cost if the necessity thereof is, in the
Contractor shall, on written request of the Engineer: opinion of the Engineer, due, to:
(a) make available to any such other contractor, or to (a) the use of materials, Plant or workmanship not in accordance
the Employer or any such authority, any roads or ways with the Contract,
for the maintenance of which the Contractor is
responsible, (b) where the Contractor is responsible for the design of part of
the Permanent Works, any fault in such design, or
(b) permit the use, by any such, of Temporary Works or
Contractor’s Equipment on the site, or (c) the neglect or failure on the part of the Contractor to comply
with any obligation, expressed or implied, on the Contractor’s
(c) provide any other service of whatsoever nature for part under the Contract.
any such,
If, in the opinion of the Engineer, such necessity is due to any
the Engineer shall determine an addition to the Contract other cause, he shall determine an addition to the Contract Price
Price in accordance with Clause 52 and shall notify the in accordance with Clause 52 and shall notify the Contractor
Contractor accordingly, with a copy to the Employer. accordingly, with a copy to the Employer.

65.3 If the Works or any materials or Plant on or near or in transit to the

Site, or any of the Contractor’s Equipment, sustain destruction or
damage by reason of any of the said special risks, the Contractor 51.2 The Contractor shall not make any such
shall be entitled to payment in accordance with the Contract for variation without an instruction of the
any Permanent Works duly executed and for any materials or Plant
Engineer. Provided that no instruction
Engineer
Instructions for Variations
so destroyed or damaged and, so far as may be required by the
Engineer or as may be necessary for the completion of the Works, shall be required for increase or
to payment for:
decrease in the quantity of any work
(a) rectifying any such destruction or damage to the Works, and
where such increase or decrease is not
(b) replacing or rectifying such materials or Contractor’s the result of an instruction given under
Equipment,
this Clause, but is the result of the
and the Engineer shall determine an addition to the Contract Price
in accordance with Clause 52 (which shall in case of the cost of quantities exceeding or being less than
replacement of Contractor’s Equipment include the fair market those stated in the Bill of Quantities.
value thereof as determined by the Engineer) and shall notify the
Contractor accordingly, with a copy to the Employer.
2.5 Instructions given by the Engineer shall be in Question
writing, provided that if for any reason the Engineer
considers it necessary to give such instruction In a lump sum Contract (where the Works would not be re-measured),
orally, the Contractor shall comply with such the Drawings show 200 m of boundary wall, but it is given in the Bill of
instruction. Confirmation in writing of such oral Quantities (by the Employer), and priced (by the Contractor) as follows:
instruction given by the Engineer, whether before or
after the carrying out of the instruction, shall be Boundary Wall 100 m 100/= 10,000 . 00
deemed to be an instruction within the meaning of
this Sub-Clause. Provided further that if the
A variation has been instructed to delete the whole of the boundary
Contractor, within 7 days, confirms in writing to the wall. Which of the following options would you use in the valuation of
Engineer any oral instruction of the Engineer and this variation:
such confirmation is not contradicted in writing (1) - 100 m @ 100/= = - 10,000 . 00 ?
within 7 days by the Engineer, it shall be deemed to
be an instruction of the Engineer.
(2) - 200 m @ 100/= = - 20,000 . 00 ?
(3) - 200 m @ 50/= = - 10,000 . 00 ?

52.1 All variations referred to in Clause 51 and any additions to the Lump Sum (Non-Remeasurable) Contracts
Contract Price which are required to be determined in
accordance with Clause 52 (for the purpose of this Clause
referred to as “varied work”), shall be valued at the rates and (A) With only a Schedule of Rates (plus Drawings and Specification)
a prices set out in the Contract if, in the opinion of the Engineer,
the same shall be applicable. If the Contract does not contain (B) With a Bill of Quantities (plus Drawings and Specification).
any rates or prices applicable to the varied work, the rates and - BOQ has provision for the Tenderer to price an adjustment
b prices in the Contract shall be used as the basis for valuation so in respect of any missing items, errors in item descriptions
far as may be reasonable, failing which, after due consultation and differences in quantities (between Dwgs/Spec. and BOQ)
by the Engineer with the Employer and the Contractor, suitable
c rates or prices shall be agreed upon between the Engineer and (C) With a Bill of Quantities (plus Drawings and Specification).
the Contractor. In the event of disagreement the Engineer shall
d fix such rates or prices as are, in his opinion, appropriate and - BOQ does not have a provision for the Tenderer to price an
shall notify the Contractor accordingly, with a copy to the adjustment as above.
Employer. Until such time as rates or prices are agreed or
fixed, the Engineer shall determine provisional rates or prices to
enable on-account payments to be included in certificates
issued in accordance with Clause 60.
 52.2 Provided that if the nature or amount of any varied work relative to the nature
Taker-off measures from the drawing and provides the quantity = 200 m
or amount of the whole of the Works or to any part thereof, is such that, in the
Estimator builds-up the rate (say current market price) = 50/= per m opinion of the Engineer, the rate or price contained in the Contract for any
item of the Works is, by reason of such varied work, rendered inappropriate
Therefore, the Tender Price = 10,000/=

Power of Engineer to Fix Rates

or inapplicable, then, after due consultation by the Engineer with the
Employer and the Contractor, a suitable rate or price shall be agreed upon
c
A Boundary Wall m 50/= between the Engineer and the Contractor. In the event of disagreement the
d Engineer shall fix such other rate or price as is, in his opinion, appropriate
and shall notify the Contractor accordingly, with a copy to the Employer.
Until such time rates or prices are agreed or fixed, the Engineer shall
determine provisional rates or prices to enable on-account payments to be
B Boundary Wall 100 m 50/= 5,000/= included in certificates issued in accordance with Clause 60.
Provided also that no varied work instructed to be done by the Engineer
B-1 Insert here any + 5,000/= pursuant to Clause 51 shall be valued under Sub-Clause 52.1 or under this
adjustments required due Sub-Clause unless, within 14 days of the date of such instruction and other
to errors……. than in the case of omitted work, before the commencement of the varied
work, notice shall have been given either:
(a) by the Contractor to the Engineer of his intention to claim extra payment
C Boundary Wall 100 m 100/= 10,000/= or a varied rate or price, or
(b) by the Engineer to the Contractor of his intention to vary a rate or price.

Henry Boot Construction v Alstom Combined

Cycles (1999) Questions …………. ?
……………………………… the rate in the contract for
steel sheet piling was twice what it should have been. When
a variation was instructed for more sheet piling, the
Contractor argued that the contract rate should apply. The
Employer countered that a fair valuation should be made for DRSAM FZE Dispute ‫د‬
Resolving ‫ر‬
PO : 23461, Dubai, UAE Phone : +971-50-4588949 Services - ‫س‬
the additional sheet piling. (Additional work was carried out Fax : +971- 4 - 4250845 Email : [email protected]
Arbitration, ‫ا‬
Establishment formed pursuant to the implementing
under similar conditions to the original work). regulations of RAK freezone authority with limited liability Mediation/Conciliation. ‫م‬
‫ﻣؤﺳﺳﺔ ذات ﻣﺳؤوﻟﯾﺔ ﻣﺣدودة ﺗﺄﺳﺳت طﺑﻘﺎ ﻟﻠﻧظم اﻟﻣﻌﻣول ﺑﮭﺎ ﺑﺎﻟﻣﻧطﻘﺔ اﻟﺣرة ﺑرأس اﻟﺧﯾم‬. ‫درسام ممح‬
Held that the work is of similar character and executed Prof. Indrawansa (Sam) Samaratunga PhD, DSc
under similar conditions to the work priced in the Bill of FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FCABE,
Chartered Surveyor, Chartered QS, Chartered Construction
Professional
Manager, Chartered Building Engineer, Chartered Manager Advice/Training on
Quantities and therefore the BOQ rate will apply. The fact Arbitrator / Mediator - London Court of International Arbitration Sound Contract
Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Administration
that the BOQ rates are too high or too low is irrelevant. The Construction Law & Dispute Resolution Advisory
Board Member of the British University in Dubai. www.drsamfze.com
parties to the contract have agreed in the contract that they
will be used to value variations.