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 despite the lack of a formal order. For example, the employer’s communication may represent an agreement to pay for additional works under a collateral contract or a waiver of the normal requirement for a formal instruction as a pre-requisite to payment.
However, the employer may not give such permission and may point blank refuse to alter the scope. Where does this leave the contractor in a claim for payment for the changed works? Can the employer ever be under a positive duty to vary the scope and, if so, can this be relied upon by the contractor to trigger payment? Continue reading
