Expert: John Dowse - 2/2/2012

Question
Hi John
As a steel subcontractor working under an Indian bespoke Contract we have an agreed set of rates against a BOQ. At tender stage we were provided with drawings of minimal complexity circa 500t. The BOQ provided by the Client showed 1500t. We applied the rates against the 1500t to arrive at the Contract sum.
During construction the Client has issued new structures and buildings not included at tender stage. Adding these to the actual revised tender drawings totals 1500t, no change it seems. However on closer inspection of the new structures they are not analogous to the original structures and have a much higher complexity in relation to the tonnage (higher piece count per ton).
The Client refers to a clause in the contract whereby change in tender to construction drawing is not a basis to claim new rates. We content that the drawings and thus structures are 'new' and therefore not comparable to the contract drawings and thus their clause does not stand.
We believe new rates should be applied to this new steelwork as the principle of rate item contracts is that rates should only be applied to items of similar character and complexity.
Best regards and thanks
James

Answer
Dear James,

Thank you for this question.

There are a number of issues here that prevent any answer being reliable; looking at two in particular. Firstly without knowledge of the Contract there is the issue of such a wide discrepancy between drawings and BoQ going unrecorded at the time of tender. This could lead, for example, to an argument over the validity of the tender. Secondly, the clause maintaining that a change from tender to construction drawings may be ineffective.   

My initial impression is that there is cause for the rates to be reviewed and revised; however I cannot comment upon whether this would be a benefit to either side. I will be happy to discuss with you how I might assist in you developing and presenting your claims effectively.



I hope that this assists you.

Kind regards,
John Dowse

Follow me on Twitter: @CernoOrg

Training and consulting services are available, bespoke to companies and individuals.
John Dowse can be contacted by e-mail to info@cerno.org (When e-mailing, please include “AllExperts” in the subject line.)