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Introduction

A variation (sometimes referred to as a variation instruction, variation order or change order) is


an alteration to the scope of works in a construction contract in the form of an addition,
substitution or omission from the original scope of works.
Almost all construction projects vary from the original design, scope and definition. Whether
small or large, construction projects will have inevitably depart from the
original tender design,specifications and drawings prepared by the design team. This can be
because of technological advancement, statutory changes or enforcement, change in conditions,
geological anomalies, non-availability of specified materials, or simply because of the continued
development of the design after the contract has been awarded. In large civil
engineering projects variations can be very significant, whereas on small building contracts they
may be relatively minor.
Variations may include:

Alterations to the design.

Alterations to quantities.

Alterations to quality.

Alterations to working conditions.

Alterations to the sequence of work.

Variations may also be deemed to occur if the contract documents do not properly describe the
works actually required.
Variations may not (without the contractors consent):

Change the fundamental nature of the works.

Omit work so that it can be carried out by another contractor.

Be instructed after practical completion.

Require the contractor to carry out work that was the subject of a prime cost sum.

In legal terms, a variation is an agreement supported by consideration to alter some terms of the
contract. No power to order variation is implied. Hence there should be express terms in
contracts which give the power instruct variations. In the absence of express terms in the contract
the contractor may reject instructions for variations without giving rise to any legal
consequences.
Standard forms of contract generally make express provisions for the contract
administrator(generally the architect or engineer) to instruct variations (for

example, FIDIC Clause 51.1). Such provisions enable the continued, smooth administration of
the works without the need for another contract. Variation instructions must be clear as to what is
and is not included, and may propose the method of valuation.
Valuation of variations
Variations may give rise to additions or deductions from the contract sum. The valuation
ofvariations may include not just the work which the variation instruction describes, but other
expenses that may result from the variation, such as the impact on other aspects of the
works.Variations may also (but not necessarily) require adjustment of the completion date.
Variations may be valued by:

Agreement between the contractor and the client.

The cost consultant.

A variation quotation prepared by the contractor and accepted by the client.

By some other method agreed by the contractor and the client.

Valuations of variations are often based on the rates and prices provided by the contractor in
their tender, provided the work is of a similar nature and carried out in similar conditions. This is
true, even if it becomes apparent that the rates provided by the contractor were higher or lower
than otherwise available commercial rates. They do not become reasonable or unreasonable by
the execution of variations (see Henry Boot Construction v Alstom (2000)).
In some contracts, when rates are applied to the valuation of variations, the contractor is not able
to claim for additional payments in relation to profits and overheads.
If similar types of works to those instructed by a variation cannot be found in
the drawings,specification or bills of quantities, then fair valuation of the contractor's direct
costs, overheads and profit is necessary.
NB NEC contracts do not value variations based on rates in the tender. Guidance on
assessingcompensation events states:
"Assessment of compensation events as they affect Prices is based on their effect on Defined
Cost plus the Fee. This is different from some standard forms of contract where variations are
valued using the rates and prices in the contract as a basis. The reason for this policy is that
nocompensation event for which a quotation is required is due to the fault of the Contractor or
relates to a matter which is at his risk under the contract. It is therefore appropriate to reimburse
the Contractor his forecast additional costs (or actual costs if the work has already been done)
arising from the compensation event."
In other words the contractor can ignore their tender pricing and claim cost plus on variations.
The arguments come on items such as factory overheads and management which are very hard to

evaluate. In addition, given the complexity and length of the supply chain in major building
works, getting forecast pricing out of all the parties affected takes time, often beyond the date by
which the contract administrator has to make the decision as to whether or not to instruct
thevariation. They may then have to decide whether or not to proceed with a variation based on
estimates from the cost consultant which in due course get replaced by the actual cost. It has
been argued that this practicality defeats the rationale of the NEC contracts in relation to cost
control and decision making.
Source of conflict
Conflict can arise when work is not mentioned in the bills of
quantities, drawings orspecifications. In common law this silence does not mean
the contractor has an automatic right to claim for extra payment. The client is not bound to pay
for things that a reasonable contractormust have understood were to be done but which happen to
be omitted from the bills of quantities. Where there are items that, whilst they are not expressly
mentioned, are nonetheless required in order to complete the works, then the contractor should
have included them in their price. The bills of quantities and specification do not necessarily
have to include every nail to be punched in. For example in fixing GRC faades it is necessary
to have steel supports, and a reasonable experienced contractor must make provision for this in
the contract price. Unless expressly excluded, such supports are not paid for as a variation.
Conflict can also arise when a sub-contractor qualifies that, for example, Supply & Fixing of
Door is included but Supply & Fixing of Ironmongery is excluded. A reasonable subcontractorshould foresee that a door cannot be fixed without hinges which is a part of
the ironmongery. So even if ironmongery is excluded, the sub-contractor cannot expect
a variation for any of the items required to fix the doors.
Also under the pretext of variation, the contract administrator cannot change the nature of works.
For example, if the contract provides for secant pile shoring, they cannot ask for diaphragm
wallshoring as it will entirely change the nature of the work. Further, if the contract
administratoromits work from contractors scope, such an omission must be genuine: that is, the
work omitted must be omitted from the contract entirely, it cannot be used to take work away
from thecontractor to give it to another (for example, see FIDIC Clause 51.1). Similarly,
the contract administrator is not empowered to order variations to help the contractor if the
contract works are proving too difficult or expensive for them.
Limits on variations
FIDIC forms of contract put limitations on variations that can be instructed. If the value of the
contract increases or decreases by more than 15% of the net contract sum (excludingprovisional
sums and day works) then the contract administrator can add or deduct from thecontract sum a
determined value upon consultation with the contractor, having due regard to their site expenses

and other general overheads. Note that this 15% increase or decrease is not for a single item of
work, but the total contract sum at completion.
In NEC3 (Option B) if the rate in the bill multiplied by the final total quantity of work done is
more than 0.5% of the priced total of the bill at the contract date, then it will constitute
a variation (see Clause 60.4)
Extension of time
Many construction contracts allow the construction period to be extended where there are delays
that are not the contractor's fault. This is described as an extension of time (EOT).
Variations may (but do not necesarily) constitute relevant events that can merit an extention of
time and so adjustment of the completion date. See extension of time for more information.
Conclusion
Variations are often sources of dispute (either in valuing the variation, or agreeing whether part
of the works constitute a variation at all) and can cost a lot of time and money during the course
of a contract. Whilst some variations are unavoidable, it is wise to minimise
potential variations and subsequent claims by ensuring that uncertainties are eliminated before
awarding the contract. This can be done by:

Undertaking thorough site investigations and condition surveys.

Ensuring that the project brief is comprehensive and is supported by stakeholders.

Ensuring that legislative requirements are properly integrated into the project.

Ensuring that risks are properly identified.

Ensuring that designs are properly co-ordinated before tender.

Ensuring the contract is unambiguous and explicit.

Ensuring the contractor's rates are clear.

Preparing concise drawings, bills of quantities and specifications, providing for all
situations which are reasonably fore-seeable.

A variation order is issued whenever there is a variation to the contracted works. This may
include adding or omitting work, increasing or decreasing the quantity of any work, changing the
character or quality of any material or work, the order in which the works proceed etc.
How and who values variation orders should be included in the contract documents. Not all
variation orders require a variation in the contract cost e.g. substitution of similar materials or a
change in the colour of a material.
Variations can be requested by either the Contractor or Principal or come about as a result of
conditions outside the control of either party e.g. bad weather.
In construction projects the most disputed variation orders are extensions of time, particularly
where concurrent delays (a delay caused by the Contractor and a delay caused by the Principal
both negatively affecting the critical path occur simultaneously) are concerned as these often
have significant cost attached.

Any variation to the original Scope of Work is called Variation Order. It could have positive or
negative time or cost impact. In very rare cases it might have neither cost nor time impacts.
In some cases it is not easy to determine whether an order from the owner (or client) is a
variation to the original Scope of Work or a part of the original Work which is stated in the
contract and its attachments or specifications.)
As soon as both parties (contractor and owner) agree that an order is a variation to the originally
mutually agreed scope of work, they need to find a way to calculate or estimate its cost and time
impacts. The method to calculate or estimate cost and time impacts are normally mentioned in
the contract.
It might be necessarily essential to mention that even changing the specifications, execution
methods could be considered as variation order. Many construction specialists say as a rule of
thumb anything beyond the contractor's control which might affect cost and time delivery targets
could be a variation order. To me it is not true and might mislead everyone.