GLOBAL CONSTRUCTION

A CONTRACTORS GUIDE TO
PREPARING VARIATION CLAIMS
Important issues to consider when submitting
variation claims for construction projects

All too often, the day-to-day reality of workload pressures for managers on a
construction project means that variation claims do not always receive the required
attention to detail - at least during the critical preparation phase. Practical experience
tells us that good research and preparation are the keys to success in variation claims
and there is no shortcut. Indeed, close attention to certain key issues can help avoid
a badly structured and poorly substantiated submission, and therefore significantly
improve a contractors chances of securing a positive outcome.

ADHERING TO CONTRACT PROVISIONS

Adherence to provisions within the contract conditions is of vital importance. Failure
to do so can severely prejudice a contractors chances of securing a favourable
outcome. Occasionally, compliance with certain contractual stipulations is a condition
precedent to the recovery of additional time and/or money, and noncompliance can
result in a contractor being prevented from recovery. Certain contract conditions
provide for extremely short notification periods and may be regarded as punitive and
unfair. However, whilst some judges and arbitrators may view such provisions quite
narrowly, they do take the view that the contractor was, or should have been, aware
of such conditions at bid stage and therefore to have priced for sufficient resources to
comply with them.1

Occasionally, the contract conditions do not provide an express route for the contractor
to recover compensation for certain events, in which case it may be possible to pursue
a claim based on terms implied through common or civil law. It is advisable in such
instances for a contractor to seek professional advice from a construction lawyer who is
fully conversant with the local law.

VARIATIONS SUBMISSION DOCUMENT

Typically, standard contract conditions will require the contractor to submit a variation
application in a timely manner, while not necessarily specifying a particular submission
format. However, in certain instances the contract conditions require the contractor
to submit its claim using a standard format. It is advisable, when dealing with
significant variations and where the standard template does not sufficiently articulate
the contractors position, for a supplementary variation document to be submitted
alongside the standard format.

1. The UK Multiplex case discusses this issue: The Multiplex Construction (UK) Ltd v Honeywell Control Systems
Ltd.,2007, EWHC 236 (TCC).
Like any business document, a variation submission must There has been a change in government legislation regulating
not only provide all necessary information, but it should be firefighting installations in residential high-rise construction. The
presented in a professional and logical format. It should ideally following steps are required to demonstrate the link between the
be a stand-alone document that contains all information cause (change in legislation) and the effect (additional works):
required to verify the liability and valuation issues identified, and
1. Identify the original contract drawings
is reader-friendly, clearly set out, and referenced. It should guide
the reader through the claim in a coherent manner, leading to a 2. Demonstrate the design development required to bring the
logical conclusion. contract drawings to Issued for Construction standard (this
establishes the full extent of the contract requirements)
The following is a typical structure of a well-prepared variation claim: 3. Explain in general how the changes in legislation will affect
the fully developed (original) contract design
1. Introduction and Background
4. Identify the individual affected component parts of the
2. Cause and Effect
contract specification, explaining exactly why these changes
3. Entitlement are required
4. Valuation 5. Provide all calculations substantiating the changes (e.g.,
5. Substantiation (Appendices) changes to pipe sizes, pumps, insulation, sprinkler spacing, etc.)

6. The valuation process should then measure and value the

INTRODUCTION AND BACKGROUND original (fully developed) contract requirements and the

This section sets the scene and summarises the issue at hand, revised requirements, the difference being the value of the

how it arose, and the remedy sought by the claimant. varied works.

ENTITLEMENT
CAUSE AND EFFECT
A contractors entitlement to additional time and/or money
Cause and effect relates to how a variation has originated. It is
will be derived from either the contract conditions or as a
fundamental to a variation claim and should be set out clearly,
consequence of the employers breach. A contractor must
providing all necessary corroborating evidence.
clearly state the specific clause within the contract upon which
it relies or alternatively what principle it alleges the employer
Cause:
has breached. This identifies the link between the cause and
The cause is act of omission or occurrence of an event for effect to the employers liability/contractors entitlement.
which the employer is responsible and gives rise to a variation
order under the contract or alternatively a claim for breach VALUATION
of an implied term. The cause can be a letter, an instruction,
The contract conditions usually prescribe the manner in which
drawing revision, change in legislation, or act of prevention by
variations should be valued. The methodologies typically
the employer or agent, etc. Always ensure that if the document
include the following:
is from the employer or agent that the person issuing it has
the necessary authority to require the identified change. The
1. Contract rates and prices
contractor should then provide a short narrative setting out
2. Rates and prices analogous to contract rates and prices
the relevant circumstances and referring to the specific clause/
breach giving rise to the claim. 3. New rates and prices established from analysing component
parts of contract rates and prices
Effect: 4. New rates and prices (commonly referred to as Star Rates)

5. Time and materials (retrospective valuation)

Contractors often consider that the valuation part of the
submission deals with effect by identifying and valuing the 6. Dayworks (retrospective valuation)
changes arising from the varied works. However, unless 7. Actual cost (damages for breach)
the route or link between the cause and the alleged effect
is identified and explained, the contractor will not have In the first instance, contract rates should be used either directly
established that it is in fact a bona fide variation to the original or indirectly to value the varied works. In the absence of such
contract requirements. Employers will often successfully refute rates, valuation typically involves establishing actual cost and
a contractors claim on the basis that it has not distinguished applying a reasonable profit and overhead allowance. Daywork
changes specific to the alleged change in the works rates included in the contract will only be used to value varied
requirements. A simple example of establishing the link between works if explicitly instructed by the employers agent. Damages
cause and effect can be demonstrated as follows: awarded will be based on actual cost and should not generally
include any allowance for profit.

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It is important to allow for the full extent of the variation, Record-keeping is at the core of successful variation claims.
including any additional indirect costs such as management time, Measures should be put in place early in a construction contract
engineering time, design time, temporary works, specialist plant to ensure that all documentary evidence that will be required for
and equipment, and the like. Finally, insurances and bond costs substantiating potential variation claims is consistent and being
may be volume- or turnover-related and should, if applicable, be properly collected and filed. It is worth noting that whilst the
included as additions to the overall cost of the variation. collation of records should generally be a matter of course for all
contractors, photographic evidence and officially circulated daily site
SUBSTANTIATION reports can be particularly persuasive sources of contemporaneous
data, to be drawn upon in a retrospective scenario.
Under the principle, What is asserted without evidence can
be dismissed without evidence, every aspect of a contractors A party to a dispute, particularly if there is an arbitration, will
variation claim, including cause, effect, entitlement, and learn three lessons (often too late): the importance of records,
valuation must be adequately supported with documentary the importance of records, and the importance of records.
evidence. The following are examples of typical sources of
evidence required to substantiate a variation: Max Abrahamson, author, Engineering Law and the I.C.E. Contract

1. Instructions from employers agents

CONCLUSION
2. Correspondence
A well-prepared and properly substantiated claim submission
3. Minutes of meetings
will be considered seriously by employers and their agents, and
4. Extracts from contract documents
can be an effective tool in expediting agreement and avoiding
5. Contract drawings conflict. Conversely, poorly drafted variation claims can lead to
6. Register of revisions issued by date frustration and conflict between the parties. Notwithstanding

7. As-built drawings the political and administrative challenges that a contractor

potentially faces on a construction contract, investing time
8. Remeasured quantities with guidance as to source material used
and resources to deliver complete and robust submissions for
9. Photographs variation claims will invariably lead to a better business outcome
10. Daily site reports for the contractor.
11. Time sheets and/or allocation sheets

12. Cost data for incurred expenditure

13. Subcontractors accounts

14. Invoices

15. Programme updates

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 CONTACTS

SHANE NASH, BSc., Pg. Dip. Arb., FRICS, FCIOB, FCIArb,

ADR Accredited Mediator
Managing Consultant
+974 (0) 44267015
shane.nash@navigant.com

navigant.com

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