Construction Law/Omission of works


I'm working as a Quantity Surveyor for the Engineer to a Contract under the Yellow Book (1999). According to this Contract the Contractor has to construct a road to a length of 30 km. After the signing of the Contract and for some reasons, 3 km don't need to be constructed because they were already constructed  by a local contractor on behalf of the responsible municipality, where this section is being. Is this issue being included with the case which a Variation shall not comprise the omission of any work which is to be carried out by others, as exactly being described in Sub-Clause 13.1 of the Yellow Book. And if this happens, must become a deduction of the Contract amount and with which way ?

Dear Konstantinos,

Thank you for your question.

Though simple question, the answer is quite complex.

In analysing that, one must know what was the situation at the time of tendering: was it in any possible way, known to the Tenderers that respective road sector, was already built, or about to be built by others?

Because that changes the entire prospective over the matter and in absence of that information and eventual other relevant details, I shall try below to explore some possibilities, for you to develop later on.

If yes, then probably, Contractor can say that respective sector wasn't in fact part of the Tender Dossier and his Offer, including tendered price, are only for the rest of the road.

If not, it is to be analysed if it was the Employer that arranged for that sector to be built, or someone else.

In any case, I would suggest the Contractor seeks to receive loss of profit.

Please analyse these hints and come back to me with further details - but please note I shall not be available over the next week.

Good luck!

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