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
Another blog, another new FIDIC publication. This time it’s the FIDIC Golden Principles, first edition, 2019 which was officially launched at the FIDIC Asia Pacific Contract Users’ Conference in Hong Kong on 25 June 2019. I touched on FIDIC’s development of the “Golden Principles” (GPs) in a previous blog post, Amending FIDIC contracts: practical issues. … Continue reading Going for gold – FIDIC publishes its golden principles
On 7 May 2019, FIDIC launched the Conditions of Contract for Underground Works (Emerald Book), the latest in its Rainbow Book series. The Emerald Book is a joint endeavour between FIDIC and International Tunnelling and Underground Space Association (ITA-AITES). This is the first dedicated international standard form for underground works. In this blog, I look … Continue reading FIDIC Emerald Book – first impressions
In a blog I posted soon after the FIDIC 2017 contracts were launched, I commented that the vast majority of the changes in the second editions related to enhanced contract management provisions. There are many elements to these provisions including stricter formalities for notices, many more situations in which notices have to be given and … Continue reading FIDIC 2017’s enhanced contract management provisions
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
It’s over a year since the second editions of the Rainbow Suite were published and the recent conferences in London and the Middle East provided a forum to reflect on the changes. Indeed, this was reflected in the respective agendas. There were sessions dedicated to responding to commentary on the second editions and also to … Continue reading Reflections on the FIDIC Rainbow Suite (2017) and other developments
They have arrived! On 5 December 2017, FIDIC launched the second editions of the three major forms of contract in the FIDIC rainbow suite at the FIDIC International Users’ Conference in London. There are enough changes to fuel discussions for years to come and I will be exploring key changes and what it means for … Continue reading Second Editions of the FIDIC rainbow suite
Over 170 delegates attended the Adjudication Society’s annual conference in London last week to listen to speakers discuss and debate issues centring on “The users’ experience and what can be done to improve it?“. However, the conference started with a tribute to Sir Michael Latham whose report, Constructing the Team, was so instrumental in introducing statutory … Continue reading Adjudication Society annual conference: early intervention, consultations and adjudicator diversity
Drum roll please… In case you haven’t heard already, FIDIC has announced that second editions of the Red, Yellow and Silver Books (1999 Suite) will be released at the FIDIC International Contract Users’ conference in London in December. I’ll be covering those in future blogs but in the meantime, in this second instalment, I look … Continue reading Amending FIDIC contracts: practical issues
This is the first in a new series of bi-monthly blog posts on FIDIC contracts. With the eagerly awaited second editions of the Yellow, Red and Silver Books expected to be published by the end of 2017 or in early 2018, there is likely to be a lot to talk about. Before then, I will … Continue reading Updating the FIDIC 1999 suite of contracts
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