Variations are the field of many contractual battles. One key part of the solution is identifying the original scope of the works. In Martifer UK Limited v Lend Lease Construction (EMEA) Limited a 'variation' was defined as any alteration or addition to, or omission from, the subcontract works or any change in their design, quality or quantity required by a contractor's direction. Supply and fabrication of the cladding support system were to be "in accordance with the Engineer's drawings and specification", but the drawings issued contained no details to assist a tenderer in the fabrication of the secondary steel support structure, other than a requirement for circular hollow steel tubes. When the contractor issued an instruction and design drawings for the support system, the subcontractor made a substantial variation claim.
However, at the pre-contract stage the contractor's commercial manager had sent the subcontractor a table setting out in considerable detail the dimensions and weights of the various support system components. Could this table be taken into account in deciding whether, and to what extent, there had been a variation? The Scottish court said it was legitimate, when interpreting the contractor's contractual obligation in terms of the pricing schedule included in the subcontract documents, to consider the greater degree of specification contained in the table. This specification was knowledge available to the parties at the time when the contract was entered into and therefore relevant to the identification of the parties' intention. Subject to changes accepted and paid for, the work required by the contractor's instruction was consequently not materially different from the work required under the subcontract.
For further information on this topic please contact Chris Fellowes at Mayer Brown International LLP by telephone (+44 20 3130 3000) or email (firstname.lastname@example.org). The Mayer Brown International LLP website can be accessed at www.mayerbrown.com.
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