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Construction Law/Variation in lumpsum: deletion or omission

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Question
Dear Peter,
I am working in a Main Contractor and have a lumpsum contract with cladding sub-contractor.  Originally in SOR there are items for 1500mm (H) and 2200mm (H) aluminium grille, units are in metre, quantities for both items in SOR is higher than the contract drawings, and now we have an instruction that the grille is changed to 2300mm (H).
Please advise can we delete the items for 1500mm (H) and 2200mm (H)and valuate the cost for 2300mm (H) aluminium grille or we have to omit the amount based on the quantities measured in original drawings.  If we can only omit the qty from original drawings, is that means we have to pay even the items do not exist in the latest drawing?
Thanks

Answer
Dear Patrick,

Lump sum contracts are always a problem when it comes to variations because the authors of the bidding documents are either too inexperienced or too idle to deal with potential problems. Next time be sure to clarify the purpose of the SoR for variations before bidding a contract.  I presume that you need to know how to deal with this problem so that you can submit your claim to the Employer.

BoQ's or SoR with quantities and lump sum projects are an oxymoron.  Hopefully, you will have something in the preamble to the SoR which gives the procedures for dealing with variations. If there is nothing, then you are your own.  There are no procedures for dealing with this situation except fair dealing.  

My approach would be that the total cost in the SoR was for the total quantity shown on the drawings, on the basis that the bidder checked the quantities in the SoR against those shown on the drawings and adjusted his rate to suit the actual quantities.  Then I would use this total cost as the basis for calculating the total cost of the new items.  

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Peter M. Elliott

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First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol www.eotprotocol.com before submitting a question.

Experience

Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Organizations
Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

Education/Credentials
B Sc(Hons) in Civil Engineering

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