Although a Variation Order may be issued by various procedures, in the end it should set out the variation required in writing, be called a Variation Order and give a description of the variation required. Whenever the Employer’s Agent issues a Variation Order in writing, it must be stated that the document is a Variation Order. If this is not stated in writing, the onus is on the Contractor to confirm that it is a Variation Order.
Whether the Employer’s Agent’s instruction is a Variation Order or not is often a point of contention. Sometimes the Employer’s Agent thinks he or she issued an instruction to supplement an original drawing, while the Contractor interprets the instruction as a change to the original drawing. If the instruction is not called a Variation Order, the onus is upon the Contractor to prove that it is a Variation Order and to get the Employer’s Agent to accept it as such. If the Employer’s Agent is cautious, he or she would require the Contractor to give an estimate of costs and the programme implications for an intended variation to formulate the Variation Order properly.
The Contractor must be aware that, in terms of the Contract, the Employer’s Agent has the power to issue certain instructions, whether the particular clause under which he or she acts, is referred to or not. As soon as possible, if the Contractor considers it applicable, the Contractor should point out to the Employer’s Agent that the instruction is a Variation Order.
This procedure requires the Contractor to confirm, in writing, to the Employer’s Agent that it is a Variation Order as soon as possible, but within seven days after receiving the written order which the Contractor contends to be a Variation Order. If the Employer’s Agent does not contradict this in writing to the Contractor within seven days of receipt thereof, it is deemed to be a Variation Order. If the Contractor fails to confirm an instruction from the Employer’s Agent, which the Contractor contends to be a Variation Order, within the seven-day period, the Contractor is time-barred.
ACCREDITED ADJUDICATOR, ARBITRATOR AND MEDIATOR