CAN WE AVOID DOING VARIATIONS?

Presumably, the only reason you will want to try and avoid doing
variations is that you are worried about not getting paid. So can you
avoid doing them?
The usual answer to this is no.
Strictly a contractor is not bound to execute more than the contract
work unless there are express provisions allowing this. This is why
the standard forms of contract do provide that the employer or his
agent may require alterations additions or omissions to the contract
work (i.e. variations) which you will be bound to carry out.
Examples include Clause 13 of the JCT 98 Form of Contract, Clause
51 of the ICE or Clause 27.3 of NEC.
These contracts also provide for payment to be made in respect of
variations (For example clause 13.2.3 of JCT '98). Make sure that you
identify the clauses within the contract for payment and valuation
and that the right ones are used. DO NOT agree to any terms of a
party that do not provide for the valuation of variations.
There are limited exceptions to the compulsion to perform a
variation which would come under two heads:
are the variations necessary for the completion of the Works?
is the variation so far beyond the scope of what was
contemplated that you can refuse to perform it?
The first question is relatively easy to answer. There is one
circumstance where contractors/sub-contractors will not be
compelled to perform a variation and that is where the
employer/main contractor attempts to incorporate variations into
the defect list when requiring the rectification of defects and refuses
to acknowledge that they ARE variations by disguising them as
defects. It is advisable to undertake such variations, once payment
terms have been resolved, but not to undertake them, if the
employer/contractor persists in stating that they are defects.

The second question is considerably more difficult to answer. Some

assistance may be derived from clause 13.2.2 of the JCT 98 form of
contract which holds that any instruction under clause 13.2.1 (for
variations):
"...shall be subject to the Contractor's right of reasonable objections

set out in clause 4.7.7".

Clause 4.1.1 allows the Contractor to make reasonable objection in
writing to compliance with a variation. Unfortunately JCT 98 gives us
absolutely no guidance as to what is "reasonable". In the case of
Thorn -v- London Corporation (1876) 1 App.Cas.120 the Lord
Chancellor said of variations:"If, on the other hand, it was additional or varied work, so peculiar,
so unexpected, and so different from what any person reckoned or
calculated upon, that it is not within the Contract at all; then, it
appears to me, one of two courses might have been open to him; he
might have said: I entirely refuse to go on with the Contract - non
haec in foedera veni: I never intended to construct this work upon
this new and unexpected footing. Or he might have said, I will go on
with this, but this is not the kind of extra work contemplated by the
Contract, and if I do it, I must be paid a quantum meruit for it."
Quantum meruit would be a reasonable price. Given that there is a
possible option to recover financially for "unreasonable variations" it
is suggested that in order to avoid a fight later on, it would make
sound commercial sense to undertake all variations, and take steps
to recover money for them.