Contract Variations under FIDIC 2017 - Did you know that you can object?

Under FIDIC 2017 there are a number of grounds that enable the contractor to object to the acceptance of the variation instruction. They are:

1. That the work instructed by the variation was/is 'unforeseeable' by reference to the signed contract and the employers requirements.
2. That the contractor can not readily obtain the goods. Contractor would obviously have to demonstrate the difficulty involved, such as inordinate cost, overly extensive procurement period, etc.
3. That the variation will have adverse effects on health & safety and environmental issues. It might be difficult to argue an adverse effect on mental health!
4. That the variation will adversely impact the required timing of the performance bond delivery. A contractor might try to argue that the value is beyond the facility limit that the companies bankers will provide, or that in some other way it will excessively delay the provision of the bond. A contractor could argue that as no sums are generally payable by the employer until the bond is in place, then the excessive period now required to procure the bond will have unacceptable cash flow implications for the contractor - by way of additional justification. Note - the contractor does not need to prove categorically that the variation WILL delay the issuance of the bond, only that it MAY delay the issuance.
5. That the variation will adversely impact the contractors ability to achieve compliance with the 'fit for purpose' clause of the clients requirements. Perhaps a contractor could argue, with whatever proof he can muster, that the materials or plant are unproven to some degree, or do not meet the project specification in some way, perhaps even that they do not meet some implied specification term. Be inventive! And Note (again) - the contractor does not need to prove categorically that the variation WILL result in an 'unfit for purpose' scenario, only that it MAY result in that scenario.

Good luck with your rejection!

For any assistance - www.khiebra.com