A contractor gets paid an agreed price for delivery of an agreed
scope of works by an agreed time.
That is of the essence of lump sum construction contracts.
However, it is virtually never the case that these three
essential elements: scope, price and time, look the same at the end
of the job as they did at the start.
Site instructions from the head contractor/principal will change
the scope of the works; extension of time (EOT) claims will change
the time for completion and variation orders will change the
Typically, under a lump sum construction contract, the head
contractor/principal can instruct the contractor to do extra work
and to omit certain parts of the original scope of works at any
time. The only limit is that the scope cannot be varied so much
that the works as varied no longer look anything like the works
under the original contract. To take an extreme example, a
principal cannot, by site instruction or variation (unless the
contractor agrees), change timber works in a 3-storey apartment
block into steelworks in a 10-storey apartment block because these
are two completely different work scopes.
Outside of these extreme examples, the principal/head contractor
will generally be free to vary the work scope, without needing the
contractor to buy into the change, just by giving the direction to
do extra work or omit some part of the work. The contractor,
however, is not so free to extend time or increase the contract
price. These rights are generally available under construction
contracts but they are limited by time bars and procedural
Time bars refer to the strict time limits that
apply to EOT and price variation claims. They are clauses in a
construction contract that simply say, if you do not claim your EOT
or price variation on time, then you cannot make that claim
at all. The effect of these time bars are strict and
absolute. This means that, no matter how much longer it takes you
or how much more it costs you to do additional work as directed by
the head contractor/principal, you do not get more time or more
money to do that additional work if you do not make your claims
within the time limits under the contract.
Procedural bars work the same way. They
basically say that an EOT or price variation will be claimed in a
particular way under the contract and if you try and claim them in
a different way, then your claim will be invalid. Some contracts
prescribe a particular form to be used in claiming EOTs/price
variations. If a form is prescribed, use it. Some
contracts prescribe specific information to be included in an
EOT/price variation claim. If specific information is
prescribed, give it.
The courts have been unsympathetic to contractors who have
missed out on their rights to claim more time and money because
their claims were late or deficient under the contract. This is one
are where good, early legal advice is essential. We can advise you
about how to protect your rights when your head
contractor/principal directs you to do more work than you bargained
for and we can prepare the paperwork that you need to give
on time and properly to make sure you don't
miss anything important.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Warranties can be risk-shifting mechanisms when the party giving the warranty is not the party at fault for the defect.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).