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Construction Law/An item has priced in BOQ but not shown on drawings


chris redley wrote at 2013-05-27 12:59:13
With respect to the previous answer, I disagree that a negative variation can apply on a LS contract, where the scope may well be(and this is the key) shown on the drawings and defined in the specs., NOT in the BOQ.  The BOQ was probably issued to you just to arrive at a tender price, a LS one.

Ask yourself the reverse - if an item shown on the drawings / in the specs is not described in the BOQ, can you ask for a positive variation.  No.  In both cases, to adjust the scope / price under the variation clause would constitute remeasurement of the works - contrary to the definition and intent of a LS contract.

Generally on LS contracts, the BOQ can describe nonsense and if no variation were to be instructed (ie. a change to the contractual work scope) then when you'd finished, you'd be due and paid the total of the BOQ (subject to PS's of course).

And that is what Lump Sum means.  You, the contractor takes the risk for errors in quants and descriptions in the BOQ.

Check your contract.  Yes, presumably it will say all docs are to be mutually explanatory ..... but that global phrase will not take precedence over any express clause which may well (1)explain how the BOQ is to be used (2) state the works are not subject to remeasurement (and that includes the employer not looking to issue a negative variation instruction just because his BOQ does not accurately define the works).

If the employer insists on deducting such under the variation clause, then write and state that that is against the intent of your LS contract and a breach and (3) such would allow you to rciprocate by claiming plus variations for works you have to do but are not described in the BOQ.

Your situation is a classic and well worn issue.  Stick to your guns.

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Naacer Gheylaani


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