Crazy clause 8: Don’t vary works when directed.

First, request wri… say it’s variation; then await confirmation, then vary - Lexology 07/02/2023, 11:47 PM

Crazy clause 8: Don’t vary works

when directed. First, request
written direction; then say it’s
variation; then await con>rmation,
then vary
Dan Morris Legal
Australia February 3 2023
Our focus so far has been on the zany effect of time barred
obligations upon pure delay events. What we’re going to look at
now is one particular delay event that puts a greater time-barring
onus on civil and construction contractors than any other. That
event is a work scope variation.
When you are directed to vary your scope of works, this usually
means providing more materials and more labour than you had
initially contracted to supply. That makes sense. What doesn’t
make sense is that nothing other than your scope of works changes.
You do not get more time to do the additional work that you have
been directed to do. You do not get paid any more to do that
additional work. Yet, typically, if you are directed to do more work,
then it is going to cost you more and it is going to take you more
time. Makes sense, right?
It may make sense to you and to me, but the contract does not
recognise the need for more time or more money to do more work.
The contract price stays as it is. The only way to get paid more and
to extend the time that you have to do the additional work is by –
yes, you guessed it – submitting yet further, time-barred
notifications and claims, in addition to the delay notifications,
extension of time claims and constant updates that are triggered by
any qualifying cause of delay.
The first of these additional requirements is truly looney. If your
principal directs you to do additional work, you have to respond as
follows:
In the first instance, refuse to follow the direction unless it is
in writing;
Then, still decline to carry out the direction and instead,
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Crazy clause 8: Don’t vary works when directed. First, request wri… say it’s variation; then await confirmation, then vary - Lexology 07/02/2023, 11:47 PM

notify the principal that you consider the direction to

constitute a variation (what else could it be!) and quote how
much compliance is going to cost;
Then, if your quote is accepted, you can do the work.
The catch is, each step is time-barred. If you miss one of these
time-bars, you are bound to carry out the direction – no matter how
onerous or expensive – entirely free of charge!
None of this detracts from the other time-barred notifications,
claims and updates that you need to give in order to gain the extra
time to do the extra work and so, avoid liquidated damages. The
time-bars are cumulative. This results in sometimes 7 or 8 distinct
notices being required with respect to a single variation direction.
An example taken from a real contract follows:

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Crazy clause 8: Don’t vary works when directed. First, request wri… say it’s variation; then await confirmation, then vary - Lexology 07/02/2023, 11:47 PM

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Crazy clause 8: Don’t vary works when directed. First, request wri… say it’s variation; then await confirmation, then vary - Lexology 07/02/2023, 11:47 PM

Dan Morris Legal - Daniel Morris

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