Daily Tenders Variations -Leads to Business Tender Bulletins in South Africa & Africa for the Civil, Building and Construction Industry

01 August 2010

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39. (1)   Variations
(2)   Orders for variations to be in writing
(3)   Changes in scheduled quantities

40. (1)   Valuation of variations
(2)   Changing of unreasonable or inapplicable rates
(3)   Notices of change to be given in writing
(4)   Daywork

39.(1) Variations

If, at any time before the issue of the Certificate of Completion, the Engineer shall require any variation of
the form, quality or quantity of the Works or any part thereof that may in his opinion be necessary or
for any reason appropriate, he shall have power to order the Contractor to do any of the following:

(a) increase or decrease the quantity of any work included in the Contract,

(b) omit any such work,
(c) change the character or quality of any such work,
(d) change the levels, lines, position and dimensions of any part of the Works,
(e) execute additional work of any kind necessary for the completion of the Works, and
(f) change the specified or approved sequence or method of construction.

No such variation shall in any way vitiate or invalidate the Contract, but the value (if any) of all such variations
shall be taken into account in ascertaining the amount of the Contract Price.

(2) Orders for variations to be in writing

No such variation shall be made by the Contractor without an order in writing
(herein referred to as a "Variation Order") by the Engineer;

Provided that,

(a) if for any reason the Engineer shall consider it desirable to give such order orally, the Contractor
shall comply with such order and any confirmation in writing of such oral order given by the
Engineer, whether before or after the carrying out of the order, shall be deemed to be a Variation
Order within the meaning of this Clause, or

(b) if the Contractor, as soon as possible, but within 14 days after receiving such oral order or a written
order which he contends to be a Variation Order, confirms it in writing to the Engineer as being a
Variation Order and such confirmation is not contradicted in writing by the Engineer to the
Contractor within 14 days of receipt thereof, it shall be deemed to be a Variation Order within the
meaning of this Clause.

(3) Changes in scheduled quantities

No increase or decrease in the quantity of any work scheduled, where such increase or decrease is not
the result of a Variation Order given under this Clause but is the result of the quantities exceeding or being
less than those stated in the Schedule of Quantities, shall be deemed to be a variation to which this Clause
applies and no order in writing shall be required therefore.

40.(1) Valuation of variations

The value of all variations ordered by the Engineer in accordance with Clause 39 shall be calculated by the
Engineer, after consultation with the Contractor, in accordance with the following principles:

(a) where work is of a similar character and executed under similar conditions to work priced in the
Schedule of Quantities, it shall be valued at such rates and prices
(including Preliminary and General allowances) contained therein as may be applicable; or
(b) where work is not of a similar character or is not executed under similar conditions, the rates and
prices in the Schedule of Quantities shall be used as the basis for valuation as far as may be
reasonable; or
(c) where work cannot reasonably be valued in accordance with paragraphs (a) or (b), a fair value shall
be determined; or
(d) in respect of additional or substituted work, if none of the above principles are applicable,
the work shall be executed on a daywork basis in terms of Sub-Clause (4);

Provided that, failing agreement with the Contractor, the Engineer shall determine the rate or
price in accordance with the aforegoing principles, notify the Contractor in writing accordingly and apply
the said determination in his certification of amounts payable to the Contractor, without prejudice to the
Contractors right to raise a disagreement in terms of Clause 60.

(2) Changing of unreasonable or inapplicable rates

Notwithstanding the provisions of Sub-Clause (1), if the nature or amount of any variation or
increase or decrease in quantity, whether ordered under Clause 39 or being the result of the
quantities exceeding or being less than those stated in the Schedule of Quantities, relative to the nature
or amount of the whole or the relevant part of the work specified in the Contract, shall be such that it results
in a change in method or scale of operation, process of construction or source of supply which will render any
rate or price (including Preliminary and General allowances) contained in the Contract for any item of work
unreasonable or inapplicable, either the Engineer or the Contractor shall be entitled, in compliance with
Sub-Clause (3) to require that a rate or price be fixed which, in the circumstances, is fair and reasonable.

(3) Notice of change to be given in writing

No change in terms of this Clause shall be made to the Contract Price or to any rate or price unless,
as soon as is practicable, and in the case of extra or additional work before the commencement of such work,
notice shall have been given in writing

(a) by the Contractor to the Engineer of his intention to claim extra payment in terms of Sub-Clause (1)
or a varied rate or price in terms of Sub-Clause (2), or

(b) by the Engineer to the Contractor of his intention to vary a rate or price in terms of
Sub-C1ause (2).

(4) Daywork

(a) If work is to be executed on a daywork basis in terms of Sub-Clause (1)(d), the Contractor shall be
paid for such work under the provisions set out in the Daywork Schedule included in the Tender
and at the rates and prices stated therein.

(b) In the absence of a Daywork Schedule, the Contractor shall be paid the aggregate of

(i) the gross remuneration of the workmen and of any foremen for the time they are actually
engaged on the work concerned,

(ii) the net cost of the materials actually used,

(iii) the percentage allowances stated in the Appendix, which allowances shall be held to
cover all charges for the Contractors and subcontractors profits, timekeeping, clerical
work, insurance, establishment, superintendence and the use of hand tools, and
(iv) an amount in respect of Constructional Plant calculated as provided for in
paragraph (c).

(c) The use of Constructional Plant shall be charged on a time basis at the rates stated in the Tender,
failing which at rates to be agreed between the Contractor and the Engineer or, failing agreement,
to be determined by the Engineer on the basis of ruling plant hire rates.
(d) If required by the Engineer, the Contractor shall, before ordering material, submit to the Engineer
quotations for the same for his approval, which approval shall not be unreasonably withheld,
and shall produce to him such receipts or other vouchers as may be necessary to prove the
amounts paid.
(e) The Contractor shall, during the continuance of all work executed on a daywork basis, deliver each
day to the Engineer or the Engineers Representative in triplicate a list of the exact occupation and
time of all workmen and foremen employed on such work and a statement showing the description
and quantity of all materials and Constructional Plant used therefore (other than tools the cost of
which is covered by the percentage addition in accordance with the Daywork Schedule in terms
of which payment for daywork is made). The Engineer or the Engineers Representative shall,
on the copies of each list and statement, record in writing, signed by him, the extent to which he
agrees with the accuracy thereof and return those copies to the Contractor.
(f) For the purpose of each monthly certificate referred to in Clause 52(1), the Contractor shall deliver
to the Engineer a priced statement of the labour, materials and Constructional Plant used
(except as provided in paragraph (e)) and the Contractor shall not be entitled to any payment for
the daywork concerned unless and until such statement has been properly rendered and supported
by one copy of each of the signed lists and statements referred to in paragraph (e).