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VARIATION
UNDER FIDIC 1999 RED BOOK

Delivered by
Asmy Sheriff
MRICS, CCMP, LLM, MBA, BSc(Eng)
 ö What is variation
ö Who Can order variation
ö Right to vary in
α Changes to sequence and timing of the execution of the Works
α Methods of construction
α Changes in quantities of any item of work included in the Contract
α Omission of work
CHECKLIST

ö Grounds for objection

ö Limits to the scope of Variations
ö limits to the time for instructing Variations
ö Variation procedure
ö Request for a proposal
ö Cost of preparing proposal
ö Response
ö Instruction process
ö Valuation of Variations and the Contractor’s entitlement to an
extension of time
ö Value engineering
 Definition
Definition of Variation Sub-Clause 1.1.6.9 - ‘‘Variation’’ means ‘‘any
change to the Works, which is instructed or approved as a variation
under Clause 13 [Variations and Adjustments]’’

In the FIDIC forms, Variations are primarily governed by Sub-Clauses

13.1 to 13.3.

The power to instruct a Variation grants the Employer a unilateral

right to instruct a change to the Works

The right of the employer to vary or change the works - After the contract has
been entered into is generally considered by many to be an essential element of a construction contract.

In the absence of a right to vary - The parties would be required to reach an agreement as to any
changes of the works and the time and cost consequences.
 Variation in FIDIC
The Contractor is expressly required to execute each Variation unless he
considers that he has a valid ground to object.

Disputes relating to Variations frequently arise following instructions.

ö Whether the instruction constitutes a Variation;

ö Whether the instructed change is within the scope of Variations permitted under the Contract or
under the governing law;

ö where the Contractor has the responsibility for the design of the Works and/or where the Works
are specified in terms of performance requirements, the effect of the Variation on design
responsibility and/or the performance guarantees; and

ö ultimately, the Contractor’s entitlement to time and money.

 Who can order Variations?
In the Redbook, the power to initiate Variations -
reserved to the Contractor administrator
If the Employer directly instructed the Contractor?
A direct instruction from the Employer will be invalid
under the Contract and thus the Contractor is under
no obligation to comply with it
So, how the Employer can control this situation?
The extent to which the contract administrator
may instruct or approve a Variation will depend on
his authority under the Contract as set out in Sub-
Clause 3.1. These constraints should be specified in
the Particular Conditions
 Right to vary in the Red Book
‘‘Each Variation may include:
a) changes to the quantities of any item of work included in the Contract (however, such changes do not
necessarily constitute a Variation),

b) changes to the quality and other characteristics of any item of work,

c) changes to the levels, positions and/or dimensions of any part of the Works,

d) the omission of any work unless it is to be carried out by others,

e) any additional work, Plant, Materials or services necessary for the Permanent Works, including any
associated Tests on Completion, boreholes and other testing and exploratory work, or

f) changes to the sequence or timing of the execution of the Works.’’

 Changes in quantities of any item of work
included in the Contract.
“however, such changes do not necessarily Under Sub-Clause 14.1(c), any such quantities are only
constitute a Variation” – is this confusing estimates.

us???

Omission of work.
Sub-Clause 13.1 of the Red Book grants the
Engineer an express power to omit any
work.
but subject to one important qualification, namely
‘‘unless it is to be carried out by others’’.
Main Roads v. Reed & Stuart Pty Ltd – by High court of
Australia ( Common law)
 Changes to sequence and timing of the
execution of the Works.
Sub- Clause 13.1( f ) grants the Engineer the Can the Engineer use this clause
express right to change the ‘‘sequence or to accelerate the work?
timing of the execution of the Works’’. This does not empower the
Engineer to instruct the
Contractor, as a Variation, to
Do we have Variation for any changes to the accelerate so as to require him
methods of construction. to complete the Works (or a
Notably, changes to the Contractor’s methods for the execution of the Section) prior to the Time for
Works are not included in the list in Sub-Clause 13.1.
Completion.
This is because a change to the Temporary Works is caught by the
definition of a Variation.
 Grounds for objection
The Contractor is required to execute and is The Engineer is required to cancel,
bound by each Variation, except where he confirm or vary the instruction.

has given prompt notice to the Engineer of a

valid ground for objection (with supporting
particulars).

The express grounds

On which the Contractor may object as set out in Sub-Clause 13.1:
ö the Contractor cannot readily obtain the Goods required for the Variation’’;

ö the Variation ‘‘will reduce the safety or suitability of the Works’’;

ö the Variation ‘‘will have an adverse impact on the achievement of the

performance;
 Limits to the scope of Variations
The limitation of scope of Variation- Can the
Contractor refuse to carry out such
additional work?

limits to the time for instructing Variations

‘‘at any time prior to issuing a Taking-Over
Certificate’’

Can the Contractor refuse to execute a

Variation after TOC.
 Request for a proposal The Contractor’s proposal should be
Sub-Clause 13.3.
Sub-Clause 13.1 in the FIDIC Red book The Contractor has the option of either ‘‘giving reasons why he
includes the power for the contract cannot comply’’ or submitting a proposal which is to include:

administrator to explore the feasibility of a (i) ‘‘a description of the proposed [design and/or (Y/S/G)]
Variation before being bound by it. work to be performed’’;

(ii) a programme for the execution of the design/work;

(iii) a proposal in respect of necessary modifications to the

Is that compulsory to include “Request” in overall programme and to the Time for Completion; and

the letter (iv) a proposal for the evaluation of the Variation (R/M)

Yes, because to avoid the risk that a request The Contractor may not submit a
may appear to be an instruction where that proposal
will be a Variation 1. The reasons are the same as those for which it can give
notice of an objection to a Variation under Sub- Clause 13.1,

2. If the Contractor does not consider that what is proposed

falls within the scope of a Variation.
 Cost of preparing proposal.
The FIDIC forms are silent as to whether the
Contractor is entitled to recover the bigh
cost of preparing the proposal.
Unlike under Sub- Clause 13.2, where the
proposal is expressly stated to be prepared
at the Contractor’s cost.
Response.
After receiving a response from the
Contractor which includes the
items listed in sub-paragraphs (a)
to (c), the contract administrator
is required to respond ‘‘as soon as
practicable’’ with approval,
disapproval or comments.

Valuation of Variations and the Contractor’s entitlement to an extension of time

Unless a proposal by the Contractor has been approved by the contract
administrator under Sub-Clause 13.3, the Variation is to be valued in accordance
with the final paragraph of Sub-Clause 13.3.
 Value engineering
Sub-Clause 13.2 is headed ‘‘Value
Engineering’’ and makes provision for the
Contractor to submit proposals on his own
initiative which, in his opinion, would:
(i) Accelerate completion,
(ii) reduce the cost to the Employer of executing,
maintaining or operating the Works,
(iii) improve the efficiency or value to the Employer of
the completed Works, or
(iv)otherwise be of benefit to the Employer.
Who will take design responsibility?
Firstly, all such proposals are to be
prepared at the Contractor’s cost.
Secondly, the value engineering
provisions are predicated on benefit
to the Employer and the Contractor is
given no corresponding entitlement
to put forward proposals which would
merely be beneficial to himself.
Therefore, the Contractor has little
incentive to make a proposal that has
no tangible benefit to the Employer
even if it is cost or time neutral and
would benefit the Contractor.
 Matter Reference to Variation/Clause Sub-Clause Matter Reference to Sub-
13 Variation/Clause 13 Clause

8.3
Contractor may be required to Proposal under Sub-Clause
5.1
Instruction to employ a nominated Instruction under Clause 13
Subcontractor submit an estimate of the 13.3
anticipated effect of the future
event or circumstances, and/or a
4.6
Unforeseeable cost of co-operating Variation
with Employer’s Personnel, other proposal.
contractors, public authorities, as
instructed by contract administrator

Instructions from contract
administrator following the
Contractor encountering
Unforeseeable physical conditions
4.12
If instruction constitutes a
Prolonged suspension affecting Omission under Clause 13
Variation, Clause 13 applies
part of the Works.
8.11

Instruction to submit additional
samples.
11.2
Remedying defects for which Sub-Clause 13.3 applies
Contractor is not responsible. (R/M/Y/S)/ Variation under
Clause 13 (G)
7.2
Instructed as a variation

7.4
Instruction for additional or amended Instruction under Clause 13
tests (where results show no default)
13.5
or delayed tests. Provisional Sums. Valued under Sub- Clause
13.3