Variation should be approved prior to proceed varied works?

The Employer/Engineer generally put argument with the interpretation of FIDIC Pink Book Sub-Clause 13.1 that it is breach of the Contract to refuse to start Variation works by the Contractor, citing disagreement with the Contractor on the new cost due to Variation as Sub-Clause 13.1 states “ The Contractor shall execute and be bound by each Variation, unless the Contractor promptly gives notice to the Engineer stating (with supporting particulars) that (i) the Contractor cannot readily obtain the Goods required for the Variation, or (ii) such Variation triggers a substantial change in the sequence or progress of the Works.”

In this regard, the Contractor may pursue the Employer, is it reasonable to commence any work without agreement of the Price? Did the Contractor agreed with the Employer to proceed with the project works without agreement of the Price? Obviously, the answer is “no”. In other words, it stipulates that such interpretation of FIDIC contract by the Employer/Engineer not right because FIDIC always promotes fair, reasonability in the rights and obligation of the parties of the Contract as per their code of ethics.

It is not expected as per principal of interpretation of law to interpret any section of the Law in isolation which may give result that will be far from the real meaning. Therefore, to get full picture, the Employer/Engineer have to consider 4th paragraph of FIDIC Sub-Clause 13.1 which stipulates that the Contractor shall not make any alteration and/or modification of the Permanent Works, unless and until the Engineer instructs or approves a Variation. Also refer to Sub-Clause 1.1.6.9 ?which states “Variation” means any change to the Works, which is instructed or approved as a variation under Clause 13 [Variations and Adjustments].”

?In this regard, other legal references

1.???? Cambridge dictionary which defines “Or” as “the same as” (it also has other meanings, but they are not applicable). Moreover, as per Wordhippo (https://www.wordhippo.com), “Instruction” is the synonym of “Approval”. Please note that as per the rule of interpreting the law, to find the true intention of the legislature, there exist many rules, principles and aids in interpretation of statutes. Apart from the intrinsic aids, such as preamble and purview of the act, the Court, can consider resources outside the Act, called the extrinsic or external aids. When a word or expression is not defined in the Act itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. In the case of Reves [v. Ernst & Young, 113 U.S. 1163 (1993), Perrin v? United States, 444? U.S. 37, 42? (1979) dictionary was used as extrinsic or external aids to interpret the law.

2.???? The Court of Appeal of UK in the case laws 1. Deepak Fertilisers and Petrochemical Corporation v Davy McKee (London) Ltd and ICI Chemicals & Polymers Ltd. and? 2. Hotel Services Limited v Hilton International Hotels (UK) Limited, has considered “Or” to refer synonym.

3.???? The other rule for interpreting the law ‘Noscitur a Sociis’ i.e.?“it is known by its associates”. In other words, meaning of a word should be known from its?accompanying?or?associating?words. The rule states that where two or more words which are susceptible of analogous meaning are coupled together, they are understood in their cognate sense. They take colour from each other, the meaning of?more general?being restricted to?less general. A word may be known by the company it keeps. Associated words explain and limit each other. According to this principal, instructed means approved in this particular setting of the Contract.

In the FIDIC, there is no definition for “Instructs” and “approves”. Therefore, the Contractor can take general meaning/principal to interpret the Contract as per the principal of the interpretation of the law and consider that instructed means approved in this case. In view of the above, the Engineer should approve the Variation prior to the Contractor proceed with the varied works/ modification of the Permanent Works under Variations.

The Employer/Engineer generally also put argument as per the interpretation of 2nd para of FIDIC Pink Book Sub-Clause 13.3 that the contractor shall not delay any work including varied works while awaiting the Engineer’s response. In this regard, please note that FIDIC used “works” and “varied works” both as per the requirement in the conditions of the Contract. FIDIC used “works” for permanent works and temporary works as per the Contract Sub-Clause 1.1.5.8 and “varied works” is used for Variation as per Sub-Clause 13.2 and Sub-Clause 13.4. Also, the Contractor herewith attaches the FIDIC Expert’s (Corbett & Co) interpretation of Sub-Clause 13.3 which states “The Contractor is obliged not to delay any work whilst awaiting a response. This refers to work other than that included in the requested or proposed Variation.” ?

The rule of interpreting the law (negative implication rule) ‘expressio unis est exclusion alterius’?means that, the?express mention of one thing is the exclusion of other or the alternative. Accordingly, the para of FIDIC Sub-Clause 13.1 “The Contractor shall not delay any work whilst awaiting a response” can be constructed “The Contractor shall not proceed varied work whilst awaiting a response.”

In view of the, the Engineer shall approve the Variation prior to the Contractor proceed with the Varied works.