129 This is an extract from Dr. Sam's forthcoming book “Contract Administration in the Middle East under FIDIC — 4° Edition (copy right pending) - Clauses 51 and 52 are the Clauses most misunderstood by many Engineers and other Contract Administrators. The root cause of many a claim in the industry is either the inadequate valuation of a variation or the questionable validity’ of a variation. Through proper understanding of Clauses 51 and 52 and their application in the intended manner, many disputes could be avoided Contract Administrators should note that, what is varied is not the Contract but the Works and therefore, expressions such as “Variation of the Contract’, “Variation to the Contract”, ‘Contract Amendment” eto. should not be used when referring to a variation of the Works, under the Contract It is incorrect to construe the expression “No such variation shall in any way vitiate or invalidate the Contract ......” stated in Sub-Clause 51.1, to mean that the Contractor is obliged to carry out any variation, instructed by the Engineer. The expression “...... the Contractor shall do ......"has already imposed this obligation on the Contractor. It is the Engineer who shall not “vitiate or invalidate the Contract’ by instructing variations ‘Changes onginated by the Contractor and executed in the absence of an instruction from the: Engineer, do not constitute variations pursuant to Clause 51, though many Contractors claim them to be variations. There afe many instructions issued by the Engineer during the ‘execution of @ project (such as instructions to change an unacceptable method of working or, to clarify the scope of work) which do not constitute variations, either. Employers often question the authority of the Engineer to issue a variation or, the necessity for a variation {contending that the work is already included in the original scope of work, and as such shall ‘not constitute a variation)130 which are neither “necessary” nor “appropriate”. He should also not instruct those changes stated in page 81 of the table given in Section 26, Contractors often claim that changes initiated and carried out by them should be considered as variations pursuant to Sub-Clause 51.1. Their Contract Administrators should note that the first sentence? of Sub- Clause 51.2 prohibits them to make any variation without an instruction of the Engineer. Contractors often argue that the proviso in Sub-Clause 51.2 implies that the differences between the quantities of the Works and those stated in the Bill of Quantities, are variations pursuant to Sub-Clause 51.1 (a) The discussion on page 177 is applicable to this scenario too. The expression “..... quantity of any work .....” in Sub-Clause 51.1 (a) refers to actual quantities and not to estimated quantities. Therefore the changes in estimated quantities do not constitute variations. Some Engineers refuse to accept the valuation of variations submitted by Contractors and/or to certify payment in respect thereof, where notice has not been given pursuant to Sub-Clauses 52.2 (a) of 52.2 (b) The opening sentence of Sub-Clause $1.1 restricts the Engineer's authority to make variations which are only “necessary” or “appropriate”. * The Contractor shall not make any such Variation without an instruction of the Engineer.431 They offer the literal meaning of the second paragraph’ of Sub-Clause 62.2 as the reason for such refusal. This is one instance where a Sub- Clause in FIDIC ~ 4" Edition needs to be construed to produce an acceptable and intended meaning, by departing from its literal meaning Engineers should apply the following tests in this instance :~ - Was it the intention of the parties that the Employer should have the varied work executed at the Contractor's cost (e.g. :- a valid variation for additional work) ? - Should the Contractor receive payment for work not executed by him (e.g. = an omission instructed as a variation under a lump sum contract) ? If the first variation is not valued. it would not be acceptable to the Contractor whilst the second would not be acceptable to the Employer, if not valued. To be fair to both parties, variations need to be valued even in the absence of a notice pursuant to Sub-Clause 52.2. Therefore the requirement of notice in Sub-Clause 52.2 should be construed as a prerequisite to only claims for extra payments or varied rates or prices, (i. the effect of the variations) and not for the purpose of valuing the variations, 770 varied work instructed to be done by the Engineer pursuant to Clause 51 shail be valued under Sub-Clause 52.1 or under this Sub-Clause unless notice shail have been given