Practical Law

A great deal has been written about force majeure and change in law in the context of COVID-19. This blog considers as an alternative whether a contractor can recover time and/ or money as a contract variation, with particular reference to three standard form contracts – FIDIC’s 1999 Yellow Book, NEC4’s Engineering and Construction Contract … Continue reading COVID-19 and variations →

The Hong Kong High Court judgment in Maeda and China State v Bauer, handed down on 9 April 2019, deals with two issues that arise regularly in practice but are rarely the subject of judicial consideration. The issues, in short, are: Will a notice be valid where it has been given on the basis of … Continue reading Validity of contractual notices and valuation of variations – Maeda v Bauer →

This is the final instalment in my series of 12 posts on variations that has run (approximately) every other month for the last two years. I have tried to cover all the key issues that arise, such as whether a variation instruction must be in writing (and how to claim if it isn’t), whether an … Continue reading Delay caused by variations →

This, the penultimate post in my series on variations, discusses valuation. In particular, the differences in approach construction contracts take to valuing variations and the implications of this, both during the project and in the assessment of tenders. Construction contracts adopt two quite different approaches to the pricing of variations: Using rates derived from a breakdown … Continue reading Valuing variations under a construction contract →

The contract administrator has two distinct roles in relation to variations under most construction contracts: Responsibility for issuing variation instructions on the employer’s behalf. Undertaking the necessary valuation and determining how much money the contractor is due. The contract administrator’s decisions made under both roles can prove contentious. But how much discretion does it have … Continue reading The contract administrator’s discretion in relation to variations →

Most employers will want to limit variations as a means of controlling costs. However, on a day to day basis, the power to instruct variations lies with the contract administrator. Proactive and successful project management may require the contract administrator to direct the contractor without going back to the employer on every occasion. But, if … Continue reading Contract administrators’ liability for variations →

Most construction contracts will try to ensure that variation instructions are given in writing. But laying down a hard and fast rule can be difficult since employers often want the flexibility to give oral instructions in certain situations. As a result, construction contracts will often fudge the position, such that it can be unclear whether … Continue reading Is an oral instruction sufficient for a variation? →

Construction contracts will normally specify that variation instructions must be in writing. But what exactly does this stipulation mean? Will this cover any form of communication, such as an email, drawing or meeting minute? This issue is not only important for contractors seeking payment for disputed changes. It is also important for contract administrators who … Continue reading What constitutes a written instruction? →

An employer must be allowed to decide what changes are made to the contract scope and therefore a contract will stipulate that variations are to be expressly instructed. Equally, unexpected difficulties in building the defined works may arise, which means that the scope has to be altered simply in order to complete the project. If the … Continue reading Deemed variations under a construction contract →

An instructed variation is not the only way a contractor’s work under a project can be altered. Equally it is not the only contractual ground for the contractor to claim additional compensation. Construction contracts will normally also contain provisions allowing the contractor to make “claims”. For example, the site conditions may be different to those … Continue reading Claims versus variations →

The previous post in this series on variations considered whether a contractor could be entitled to payment for implementing a change in the absence of a formal instruction. It discussed the fact that an employer may grant the contractor permission to alter the works and that this permission may open up a right to payment … Continue reading Is there ever a duty to instruct a variation? →

In this third post of a series looking at variations, I consider what is probably the most commonly asked question in this area: Is a contractor entitled to be paid for undertaking a variation where no formal instruction has been issued? Before answering this question, it is important to remember why construction contracts incorporate variation … Continue reading Payment for variations with no instruction →

In the first post of this series on variations, I looked at the issues that needed to be considered when assessing whether an item was within or outside the scope of works. In particular, the issues that arise when the contractual risk allocation is such that the contractor is responsible for the cost of undertaking work … Continue reading Variations at the contractor’s risk →

This is the first of a series of bi-monthly blog posts on the subject of variations. This post deals with a subject that should be considered the logical starting point for any discussion about extras: the scope of works. After all, in order to assess whether something is a variation, it is first necessary to determine … Continue reading Liability for variations →