Prospective Claims for Variations Under FIDIC and NEC3: Evidential and Procedural Issues

Christopher Ennis

October 2015

A paper presented to the inaugural conference of the Society of Construction Law South Africa in Cape Town on 10th September 2015

Where a form of contract contains provisions for an additional payment to the contractor where the employer (or someone on his behalf) instructs a variation, how should this additional or different work be valued? Christopher Ennis's paper considers the difficulties which may be caused by the need to value variations; and the correct (or possible) approaches to these issues under the FIDIC Red and Yellow Books and under NEC3.

1. Introduction - 2. Relevant contractual provisions - 2.1 FIDIC - 2.2 NEC3 - 3. What is the issue? What could possibly go wrong under either form of contract?3.1 Why is this worth worrying about anyway? - 3.2 Scenario 1: FIDIC Yellow Book - 3.3 Scenario 2: NEC3 Option B with priced bill of quantities - 3.4 Which party benefits from prospective or retrospective valuation? - 4. Concluding propositions: FIDIC - 5. Concluding propositions: NEC3.

The author: Christopher Ennis MSc FRICS FCIArb is a Director of Time | Quantum Expert Forensics Ltd; he practices as an expert witness (quantum), mediator, arbitrator and adjudicator.Email: chris@tqef.uk.com.

Text: 12 pages