工程變更英文資料

1、Variations in construction contracts can mean changes to the terms of the contract or it can mean changes to the scope or character of the wrks. In this article, Lim Chuen Ren looks at variations in construction contracts in the latter sense.Variations to the scope of construction works are necessar

2、y because no project is impeccable and changes are required to meet unforeseen circumstances or changed requirements. Thus, variation can be in the form of additions, omissions or substitutions.Functions of Variations ClausesVariation clauses are a common feature in construction contracts. It is use

3、ful to note, atthe outset, that the proprietorisnot entitled as of right to direct variations (Ashwell Nesbitt v Allan&Co (1912) Hudsons Building Contracts (4th ed) Vol2 at page 462). Hence the need for a variation clause. Secondly, they ensure that contractors can recover payments for variations pr

4、operly directed (KnightGilbert Partners v Knight (1968) All ER 248).Issues Concerning VariationBroadly, problems concerning variations arise in threeareas:scope (was it a variation orwas the contractor bound to do it anyway?);non-compliance with procedural requirements; andvaluing the variations.Whe

5、therthe variation work is within the scope of the contract will depend, firstly, on the terms of the contract which sometimes beg the question: what is the contract? In many cases, the documents forming the contract are defined. An example is clause 1.1 of PC-1 (PC-1, 1988 Project Contract by Proper

6、ty Council of Australia) which provides:ContractThe contractual relationship between the parties is constituted by:the Formal Agreement to which these Conditions of Contract are attached;these Conditions of Contract;the Contract Particulars;the Works Description; andthe other documents (if any) refe

7、rred to in the Contract Particulars.Even without such explicit provisions, it is probably true to say that the court will not confine itself to the written agreement alone in determining the scope of the contract: specifications, drawings, correspondence, etc, all form partand parcel ofthe contract.

8、 Having determined the contract documents, there is the further issue of inconsistencies in or between parts of the contract. Different contracts deal with the issue differently. FIDIC, in clause 5(2), provides for a priority list of documents as follows:The several documents forming the Contract ar

9、e to be taken as mutually explanatory of one another, but in the case of ambiguities or discrepancies the same shall be explained and adjusted by the Engineer who shall thereupon issue to the contractor instructions thereon and in such event unless otherwise provided in the contract the priority oft

10、he documents forming the contract shall be as follows:The contract Agreement (if completed).The Letter of Acceptance.The Tender.Part II of these conditions.Part I of these conditions.Any other document forming part of theContract.The JCC-D 1994 contract (section 2, JCC-D 1994 Building Works Contract

11、without Quantities issued by the Joint Contracts Committee, Australia) provides for a similar precedence of contract documents but goes one step further by requiring the contractor or architect, if they discover any discrepancy, to inform the other. The architect will then give to the contractor an

12、instruction explaining, determining or correcting the discrepancy.Implied or Necessary WorksAs indicated, whether a particular work is a variation will depend on whether it comes within the general scope of the contract. Some works, although not specifically described, are nevertheless considered as

13、 implied or form a necessary part of the contract. An early case on this point is Williams v Fitzmaurice (1858) 157 ER 709. In that case, the contractor undertook to provide the whole ofthe material mentioned or otherwise in the foregoing particulars necessary for the completion ofthe work and to pe

14、rform all works of every kind mentioned and contained in the foregoing specificationsforthesumof 100.00 pounds. Flooring wasnotspecifically mentioned and the issue was whether it was included in the contract. The court held that it was. Similarly, inWa/kerv/?andw/ck Adun/c/pa/ Counc/7(1929) SR (NSW)

15、 84 the contractor agreed to do and perform the whole ofthe works required in or about the construction of a concrete retaining wall. In performing the works, Walker had to remove a sandbank to construct the retaining wall. The plan (which was not incorporated in the contract)showedthebanktobe6feetw

16、ide. Walkerclaimedthebankwasinfact 12 feet wide and claimed for work and labour in removing the extra 6 feet. The majority of the court held thatthe contractwasan entire one to build a retaining wall at a fixed price and that the risk lay with contractor. Rogers J said (at page 87):The contractis no

17、t to perform the workset out in any plan; all work necessarily required forthe construction must be done whether set out in the plan or not.Formal Requirements - Written DirectionsA variation is usually effected through an instruction from the principals architect or superintendent. Such instruction

18、s are usually required to be in writing. Whether this is a pre-requisite to the contractors right to recover payment will depend on whether the requirement is a condition precedent. This is a matter of interpretation ofthe contract. Lord Blackburn in District Road Board of Broadmeadows v Mitchell (1

19、867) 4 WW & AB (L) 101 (FC) has this comment:It is common enough to have provisions, as these are here, more or less stringent, saying that no extra work shall be paid for unless it is ordered in writing by the engineer, and if such conditions are properly made, and there is nothing fraudulent or in

20、iquitous in the way they are carried out, these conditions would bequitesufficient and effectual (Thars/s Sulphur & Copper CovM elvoy & Sons (1878) 3 AC 1040 at pages 1050-1051).What constitutes writing is sometimes also an issue. In Wormaid Engineering Ltd v Resources Conservation Co(1992) 8 BCL 15

21、8, sketches in the architects office describing the variations to be done was held not to be sufficient to satisfy the clause requiring alterations to be directed in writing in the architects hand, but in Bedford v Borough Of Cudgegong (1900) 16 WN (NSW) 142, a letter signed by the architect authori

22、sing the work was held to be sufficient.Recovery in the Absence of a Written DirectionWhilst failure to comply, on the whole bars, a claim, there have been cases where courts have allowed the contractors to recover on the basis of an implied promise to pay: Liebe v Molloy(1906) 4 CLR 347, or estoppe

23、l: Update Constructions Pty Ltd v Rozelle Child Care Centre (1990) 20 NSWLR 25L or on the basis of unjust enrichment - standing by and taking the benefitsH/ v South Staffs Railway (1865) 12 LT (NS) 63, or on the basis that the works ordered are outside the scope of the contract and, therefore, const

24、itutes a separate contract: Pavey & Mathews v Paul1987) 61 ALJR 151.Limitations on the Power to VaryVariation clauses, even if widely drafted, nevertheless have limitations. One such limitation is the issuance of the practical certificate of completion. Commissioner of State Bank v Constain (1983) 3

25、 ACLR 1 illustrates the point that the power to order variations is not in force after the certificate of practical completion as it then reaches the stage for maintenance and rectification of defects. This restriction is now reflected in AS 4000 Clause 40.Secondly, the contractor is not required to

26、 undertake works that are outside the scope of the variation clause itself. As Cook J in J & W Jamieson Construction v City Of Christchurch (unreported, 8 November 1984, Christchurch High Court) said: To my mindjf a variotion may fairly be said to be a chonge to the works as these described, whether

27、 it comprised an addition, reduction or substitution to the works or effects the carrying out of the works, then it is a variation which the contractorisunderan obligation to carry out, if it is beyond that, it is not.A third limitation that is sometimes canvassed is this. A variation is defined as

28、something which bears some relationship to the current contract works (Blue Circle Industries plc v Holland Dredging Co Ltd 37 BLR 40 per Purchas LJ). Thus, the variations directed must be of a character and extent contemplated by, and capable of being carried outunder, the provisions ofthe contract

29、 (AS 4000 Clause 36.1). A similar qualification is to be found in the JCCD 1994 Contract, Clause 6.10.01 (Unless otherwise agreed all Variationsshall be within the general scope of this Agreementso asto be ofa character and extent contemplated byand capable of being executed underthe applicable cond

30、itions of this Agreement.). Clauses like these prevent the proprietor from effecting fundamental changes to the building design or works under the guise of variations.Other limitations relate to the right ofthe proprietor to omit works from the contractor. Generally, the power to vary the scope of w

31、orks does not allow a proprietor to deprive the contractor ofthe benefit of that work altogether. InComm/ss/onerofAda/n Roads v Reid 1974 131 CLR 378 (see alsoJA Berriman v Carr(1953) 89 CLR 327), a clausein the contract allowed that:if sufficient topsoil to meet the requirements of the works cannot

32、 be obtained within the right-of-way, the engineer may direct the contractor in writing to obtain top soil from other approved locations.The contract also contained a clause allowing the engineerto omit any of the works. The engineerjnstead of allowing the contractorto obtain the required topsoil fr

33、om otherapproved locations, decided to omit the works from the contractorand awarded the works to anothercontractor, atacheaperrate.The High Court of Australia held thatthe clause only gave the engineerthe choice between directing the contractorto obtain the topsoil orto omit the works. It did notco

34、nferonthe engineer the right to have the works performed by a third party.Stephen J (at page 382) made the pointthat:Were he the engineer legally entitled to do so it would,! think, run counterto a concept basic to the contract namely thatthe contractor, as successful tenderer, should have the oppor

35、tunity of performing the whole of the contractworks.Chadmax v Hansen & Yunken Pty Ltd (1985) BCL 52 is a case that illustrates the dilemma sometimes faced bythe main contractorwhen compelled by the proprietors to omit certain works. In this case, the subcontractorwas engaged to instaHwallflex1 to st

36、airwells and corridors. The architect subsequently deleted a substantial portion of that particular work from the main contract and the main contractor did likewise with the subcontract. The subcontractor sued the main contractor for repudiation of contract and succeeded. The judge in the first inst

37、ance, Brebner J, commented that: I would have held that the power in the defendant to require increases or decreases in or omissionsfrom thesub-contract workorchangesin the characterorquality of any material a work could not be construed as a power to cancel virtually the whole of the subcontract wo

38、rks. The main contractorjoined the owners as a party to the action but, unfortunatelyfor the main contractor, the wallflex works in the main contract constituted only a minor part and their omission from the main contract was held to be within the general scope of the contract.Valuing the VariationI

39、fthe variation fallswithin the terms ofthe contract, the rates prescribed will be used to value the work. Clause 36.4 of AS 4000 is one such clause, which also allows a reasonable sum for profits:36.4 PricingThe Superintendent shall, as soon as possible, price each variation using the following orde

40、r of precedence:prior agreement;applicable rates or prices in the contract;rates or pricesin a priced bill of quantities, schedule of rates or schedule of prices, even though not contract documents, to the extent that it is reasonable to use them; and 4 reasonable rates or prices, which shall includ

41、e a reasonable amountfor profit but not overheads.That price shall be added to or deducted from the controct sum.In most cases, valuation using the rates prescribed in the contract presents no real problem. But what is the position if the contract is terminated or if the works are carried out under a separate, and usually oral, contract? In such cases, the courts will usually award a reasonable rate ora rate