Clause 13: Variations and Adjustments: The Power To Vary and Its Limitations
Clause 13: Variations and Adjustments: The Power To Vary and Its Limitations
Clause 13: Variations and Adjustments: The Power To Vary and Its Limitations
The Power to Vary and its Limitations foresee. It is thus difficult to see how any variation
at all could fail to be caught by this test.
While the process of ordering a variation has not
changed dramatically, the 2017 edition Two significant limitations now expressed for the
substantially clarifies the limits on (some may say first time allow the Contractor to object where the
“additionally limits”) the Engineer’s power to vary. variation may adversely affect its ability to meet
health and safety and environmental protection
Under the 1999 and all earlier editions, the power obligations.
to vary was expressed in open-ended terms and it
was left to the underlying law to say whether or not The final provision may also have unexpcted
this power was limited. Most legal systems do consequences. This is set out in Sub-paragraph
recognise that variations cannot depart 13.1(e) which allows the Contractor to object where
significantly from the original scope of the contract. the variation “may adversely affect the
Under English Law there is probably an implied Contractor’s obligation to complete the Works so
term, based on the concept of business efficacy, that they shall be fit for the purpose(s) for which
that instructions should be reasonable and not they are intended in accordance with Sub-Clause
stray ‘outside the Contract’. However, this was not 4.1 [Contractor’s General Obligations].”
spelled out and always left room for argument. Sub-Clause 4.1 imposes on the Contractor the
obligations:
In a change which will be welcome to Contractors
they are now given an express right to object when • To execute the Works in accordance with the
the varied work was “Unforeseeable having regard Contract. This would normally require
to the scope and nature of the Works described in obedience to VO’s, but Sub-Paragrpah 13.1(e)
the Employer’s Requirements.” This is a provision creates an exception.
that is capable of dramatically changing the concept
of what may be the subject of a Variation under the • To ensure that “when completed the Works
contract. “Unforeseeable” is defined in Sub-Clause shall be fit for the purposes for which they are
1.1.87 as “not reasonably foreseeable by an intended as defined and described in the
experienced contractor by the Base Date”. “Base Employer’s Requirements”.
Date” is the date 28 days before submission of
tender. Sub-Clause 13.1. (a) adds the additional The language here is different from that used in the
glossthat regard must be had to the scope and 1999 Edition and, in the context of Variations, this
nature ofthe Works as described in the Employer’s causes important consequences. The 1999 Edition
Requirements. required the Works, when completed to be fit for
the purposes “as defined in the Contract”. As a
While an experienced contractor will assume that Variation changed the effect of the Contract, the
there will be some variations during the course of fitness for purpose obligation adjusted accordingly.
the Works, he would have to be possessed of quite It can be seen that, under the 2017 edition a
extraordinary foresight to know what each one of Variation, would have to specifically amend the
these would be. By definition a variation is likely to Employer’s Requirements if it were intended to
be something which the Employer, advised impact the purpose for which the Works are
(hopefully) by an experienced engineer also did not
1
George Rosenberg is a Consultantat Corbett & Co. International Construction Lawyers Ltd. He can be contacted at [email protected]
2
The contents of this article should not be treated as legal advice. Please
contact the lawyers at Corbett & Co before acting on or relying upon
anything stated in this article.