Employer's Requirements, Design Development & Scope Creep

On design and build/construct Projects there is usually a detailed Employer's Requirements within the Contract Documents showing not only what the Employer expects but also forming the basis of what the Contractor priced.

Thereafter, with Commencement, the Contractor will begin the process of design submissions that will usually come back Code 2/B until such time as the comments therein can be incorporated and a Code 1/A achieved.

The danger here is that when there is a certain degree of latitude as to what can be submitted and what can be commented upon, the intentions of both Parties can be mislead.

The ER may well include chandeliers to be installed.

The Contractor may well propose beautiful chandeliers Type A.

The Engineer may well be delighted at the Contractor's choice and give Code 1/A.

The Contractor however, believing that the ER only allowed and showed chandeliers Type D (being "standard") but knew that Employer would prefer Type A (being "excellent") hence submitted them with a misguided understanding that the Code 1/A was also an approval of the VO for the cost difference between Type A and Type D.

Thereafter when submitting the IPAs for works inclusive of this "VO" there will ensue endless arguments along the lines of "we wanted chandeliers, your proposed, Type A, we accepted Type A, no additional cost is relevant".

Just because what is proposed is accepted does not remove any burden on the Contractor having to show that this is now a variation.

Unless there is recorded discussions showing the Employer/Engineer wanted Type A even though Type D was part of the ER, the Employer/Engineer will merely claim that this is part of Contractor's Design Development hence was always part of his successful tendered price.

Only by indicating clearly from the documents forming the Contract that the submission - reflecting something that may have been discussed between Contractor, Employer, Engineer - is in excess of that which was defined in the ER, does the Contractor have a chance of proving their claim for additional time and/or payment.

Scope Creep is something that can become apparent with comments on submissions given Code 2/B and it should be something the Commercial Department is more aware of so that there is not too much water under the bridge before the issue is broached directly with the Engineer/Employer and possibly withdrawn before any onerous condition is entered into by the Contractor.