We have a fixed priced lump sum order to construct a road formation, however following the subsequent CBR tests the stone is no longer required as indicated on a revised drawing. However there has been no further notification from the client and they have omitted it from our payment application?
Is the Client able to do this, or is it our risk money as we had taken the risk on the ground and the works being required before works commenced on site?
It would depend on what the Employer’s Requirements say. If the ER expressly states that stone is to be laid then the Employer can issue an instruction to omit it and that omission valued as a Change under Section 5.
If it is not expressly stated in the ER (and it probably isn’t as ground conditions under that contract are the Contractor’s risk), then the Employer has no power to instruct a Change and it therefore cannot be omitted.