Instruction for a Variation after T.O.C

The Red Book 1992 Edition Clause 62.2

The contract remains inforce until TOC is issued.

Any variation within this period will be carried out and valued accordingly as separate item. This should not delay either the release of the performance security or the issue of the Defects Liability Certificate.

I hope this will help you

Dear Raphael,

Thank you so much for your valuable answer, as you said this variation is to be carried out and valued as seprate item, I agree with that, but does realy the Employer have the right to issue the instruction of such variation after the issuance of the "Taking Over Certificat" i.e. within the Defect Liability Period?, and what if the Contractor refuses to carry out such instructions, would the Contractor be in breach to Contract?

I believe FIDIC 4th is not clearly specifies this situation, and I didn’t have the chance to refer to the Red Book 1992 Edition, but I expect it also misses the description of this situation.

I will very much apprecaiate your kind assistacnce and expertise.

Thanks

Hi Faried

When the TOC is issued you have completed the contract except for the defects liability period.

To my mind you have no obligation to accept this variation under the original contract.

You can however treat it as a new contract and negotiate accordingly.

Best regards

Mike Testro

Thanks Mike for your valuable answer, I also have the impression that it should be treated separately not under the same rates of the original contract, I was only confused if there is an obligation or not because some opinions said that the contract understood valid even if the T.O.C is issued because the Contractor’s liabilities and obligations are seized only upon issuance of the Defect Liability Certificate, hence, as long as executing variations considered as an obligation, so must be accepted even within the DLP.

Thank you so much friends

Dear friends

Its also worth to refer to clause 49.2(b) which is paid under clause 49.3, provided that the instruction is appropriate.

Thanks Deep, I think now it is clear that, the Contractor has the obligation to carry out any variation under the contract during the DLP.

Thank you so much my dear friends

Referring and on the contrary to my previous comment, I think I am more confused because if we have the conclusion that the Contractor has the obligation to carry out variations within the DLP, so what would be the situation if such variations would require EOT??, i.e. would the Contractor be entitled for EOT??, and the term "EOT" in such case would it be suitable?, so many questions and I am more confused.... any further answer

Hi,
why you are confused ,the conclusion that the Contractor has the obligation to carry out variations within the DLP, and with no need for extension of time since there is no penalities and the mobilization and demobilization cost and all otjer general items cost can be included in the contractor new rates for these works.
so the Contractor is not entitled for EOT??, simly becaue no penalities can be imposed on him and he is entitled only for new rates to cover all additional cost.

Thank you Ashraf for your valuable opinion, well, since there is no penalty, so the Contractor is free to complete the variation whenever he likes so that means no constraints on time to complete such variation!! Well what do you think!

the contractor hasto complete the variation within specified period as reasonably shall agreed between two parties within the defects liability period.

Hi,

The client and contractor can agree on a variation order with seperate time milestones within the DLP of the contract which may or may not require further EOT.

Regards-liaqat hayat