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Contracts Management and Administration
(Based on FIDIC Standard)
PMI, PMP, PMBOK and the PMI Registered Education Provider logo are registered marks of the Project Management Institute, Inc.

Sub-Clause 13.1
Variation or Right to Vary
The Unilateral Right of the Employer
to Alter a FIDIC Contract Agreement

LEARNING OBJECTIVES
1. Provide Supporting Case Law
examples to FIDIC Concept that
Variations cannot be proposed bythe Employer simply to remove
works away from the existing Main
Contractor and allow this same
works to be given to another
Contractor;

LEARNING OBJECTIVES
2. Is a Particular Instruction a
Variation or just an instruction?.
3. Provide the specific UAE Civil
Codes references applicable to
FIDIC 1999 RB Sub-Clause 13.1
and discuss the differences
between the two areas.

WHAT IS A VARIATION?

IMPORTANT DEFINITIONS FOR
VARIATIONS WHAT IS IT?
Changes are required to the works
at some point on most construction
projects.
Hence, a mechanism enabling the
employer to instruct, and the
contractor to implement, variations
is important.

The power to vary is an essential
part of very construction contract
but the scope of the power to vary
differs considerably between
different forms.

Sub-Clause 13.1 confers a very
wide power and it will only be in
unusual circumstances that the
Contractor will not be obliged to
follow a variation instruction.

A variation (sometimes referred to as
a Change Order ) is an alteration to
the scope of work originally
specified in the contract, whether
by way of an addition, substitution
or omission to the works, or through
a change to the manner in which
the works are to be carried out.

DEFINING VARIATION

DEFINITION OF VARIATION
There is no useful definition of theterm Variation. The definition in
Sub-Clause 1.1.6.9 is not very helpful:
Variation means any change to the
Works which is instructed or approved
as a variation under Clause 13
[Variations and Adjustments]

This at least makes it clear that any
INSTRUCTION about the
Works not instructed or
approved as a variation under
Clause 13 is not a Variation.

This has implications when anEngineer issues an instruction
under Sub-Clause 3.3. Sub-Clause
3.3 attempts to deal with this by
stating that:
If an instruction constitutes avariation, Clause 13 [Variations
and Adjustments] shall apply

Thus it seems that contrary to
Sub-Clause 1.1.6.9, a Variation is
not only a change to the Works
instructed under Clause 13 but
may also be instructed under
Sub-Clause 3.3.

In order words For an
instruction to amount to a
Variation - the Contractor
must act on it.

CASE STUDY
INSTUCTIONS AND VARIATIONS
Obrascon Huarte Lain SA v HM
Attorney General for Gibraltar
the Engineer issued a document entitled
draft fill guidelines, which gave
directions about undertaking certain
works, which if implemented would
have amounted to a Variation.

CASE STUDY
The Contractor, however, chose not
to act upon the draft fill guidelines
when removing contaminated
material from site and dealt with
the contaminated material by
another accepted method.

CASE STUDY
The Court of Appeal therefore
stated:
Accordingly the issue of the draft
fill guidelines did not constitute a
variation instruction.

PURPOSE OF A VARIATION

PURPOSE OF VARIATION
to enable an employer to avoidhaving to enter into a new
contract with the same
contractor, or perhaps another
contractor, to have him perform
the variation.

PURPOSE OF VARIATION
If employer were to approach a newcontractor he would face re-
tendering costs, possible increases in
prices, delay and clashes between the
original and new contractors on site.
The Right to Vary allows employer tominimize costs and inconvenience to
Main Contractor/Subcontractors.

EXAMINATION:
Sub-Clause 13.1
RIGHT TO VARY

EXAMINATION
13.1 Right to Vary (FIDIC 1999 RB)
Variations may be initiated bythe Engineer at any time prior
to issuing the Taking-Over
Certificate for the Works,either by an instruction or by
a request for the Contractor
to submit a proposal.

EXAMINATION
The Contractor shall execute and bebound by each Variation, unless the
Contractor promptly gives notice to
the Engineer stating (with supporting
particulars) that the Contractor cannot
readily obtain the Goods required for
the Variation.
Upon receiving this notice, theEngineer shall cancel, confirm or vary
the instruction.

EXAMINATION
Each Variation may include:
(a) changes to the quantities of anyitem of work included in the Contract(however, such changes do not necessarilyconstitute a Variation),
(b) changes to the quality and othercharacteristics of any item of work,

EXAMINATION
Each Variation may include:
(c) changes to the levels, positionsand/or dimensions of any part of theWorks,
(d) omission of any work unless it is tobe carried out by others,

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