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Construction Law/boq item not in specifications

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Question
QUESTION: hi,

      I am working for a maintenance project in abu dhabi, and the problem is simple that i want to ask about. I have an provisional item in the BOQ for recycling of asphalt that is non-existent in the specifications. Our cost estimators have priced it incorrectly with a huge loss and the item needs to be given a new rate orelse the contractor could suffer a huge loss if the client orders the contractor to use this item in all work orders, i await your kind reply to this issue.

ANSWER: Dear Ruyhan EL-laithy
Hello
I am taking the opportunity to reply your question.
It is not clearly mentioned in your question that priority of the documents included in the contract.
If BOQ is on the priority of the specifications,then item of BOQ item for recycling of asphalt will be the responsibility of the contractor as priced by him. At the same time contractor has no binding to execute the item in the same rate in all other work orders.
Contractor has binding to execute the item with priced rate of the quantity of BOQ and additional 10% or 25%(as per the provision made in the contract) quantities of BOQ, other wise new rate will be payable; if the quantity exceeds more than 10% or 25%(as per the provision of contract agreement).
I hope this reply will help to you.
With best regards,
Sanjay Khandelwal  


---------- FOLLOW-UP ----------

QUESTION: thank you for taking the time to answer my question, you answered that if the boq is prioritized on the specifications than the contractor has no right for a new rate but the fact is that the contract specifications supersede or is prioritized over the BOQ, but under clause 12.3 (evaluation), it explains the contractor has the right to ask for a new rate if quantities exceed 10% but i couldnt find it saying that the contractor has the right to claim for a new rate if the contract specifications supersede the contract BOQ. Moreover the contract BOQ quantities are general for all work orders and the preamble BOQ explicitly states that the contractor has no right to claim for a new rate because of exceeding quantities etc.

      Moreover, the item for the recycling of asphalt is a provisional item with no quantity, but the provisional sum for all provosional items is 8 million dirhams for one maintenance contract and 6 million for the other (different contracts for maintenance of different areas in abu dhabi). But the specifications for the item (recycling of asphalt) is not in the contract specifications. my question is how do i claim for a new rate if the specifications supersede the BOQ? using the FIDIC, how do i prove this claim?

Answer
Dear Ruyhan EL-laithy
Hello
It is my pleasure to listen you once again.
In your case, it is clear that item included in the contract as "only rate the item" with total provisional amount is 8 million dirahams.
Contract specifications are not included the specifications of recycling of asphalt. If the the cost of provisional sums exceeds the limit of provisional amount, then new rate will be claim as per provision of contract agreement.
with due regards
Sanjay Khandelwal

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Sanjay Khandelwal

Expertise

I can answer related to the various construction contracts forms related with disputes and claims.Expertise in to evalute the extension of time,cost and profit claims.I can answer regarding the contract management in civil works.

Experience

I have the experience of construction industry, as a consultants,executor of construction activities of infrastructure development like road and buildings. I have the experience of various software related to design of highways and quantity evaluation.

Organizations
I am life member of Indian Road Congress,INDIA I am presently employed with M/s Lion Engineering Consultants,INDIA

Education/Credentials
My educational qualifications are as below: I am engineering graduate from MITS, INDIA,1987 I have completed my Post graduation from NIT,INDIA,2011

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