FIDIC 건설표준계약에서 발주자 일방의 공사변경(variations)권한－준거법이 영국법인 상황을중심으로－

Abstract

The so called scope of the works, once defined within a construction contract, including the employer’s requirements, specifications, drawings and bills of quantity, may require various alterations to successfully adapt to circumstances and events which were not foreseen in detail. Typically construction contracts provide so called variation clauses allowing the employer unilaterally change the scope, sequence, method or design of the works. By this menas the contract is able to respond to the practical needs of all kinds of projects. In fact, variations to the works are almost inevitable, because of the fact that events and circumstances arise which may be beyond the control of the parties albeit also being caused by them. Thus, the reasons for variations can be manifold. Under a FIDIC contract, variations are covered by clause 13. The clause covers both the authority of the engineer and the employer as well as the procedures for work being added, omitted, or changed from the original contract, either by initiative of the contractor (value engineering) or the initiative of the engineer. Also the extent to which the agreement in terms of price and time for completion will be affected by variation orders is commonly stipulated in detail by the contract. FIDIC forms of contract distinguish between the effects of variations upon time and cost and provide different rules for claims as to extension of time and cost. This article covers in detail FIDIC variation and relevant clauses, including but not limited to concept, extent, and effect of employer’s unilateral variation right, formal requirement of the variation, distinction from site instruction and concessions, agency authority, its relation with demand guarantee, comparison with doctrines of frustration and changed circumstances. Further, this article explores what limitation and restriction can be imposed on employer in exercising such right to vary, including the right to omit a certain part of the works.