Construction Law/Breach in Contract


QUESTION: There are three sites of the Project;
Unit rate of an item for two sites are abc per (pcs) and unit rate for one site is abc per (month) in BoQ.
The Engineer has certified quantities for one site as stated above, considering unit (pcs) instead of (month) which is breach of contract by the Employer (as the Engineer is assigned by the Employer)

You are requested to help me that how to deal with such situation.

ANSWER: Dear Raja,

I don't do private questions on this free public service, especially when the questions are of general interest to many readers, without a reason being given. Please look at the instructions on my page. I guess that you have a lot of reasons why you want this question to remain private, but you should state them. If you wish, you can resubmit as a public question, because sometimes questions are marked as private by mistake, or alternatively give me a reason as to why this question should be private.

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


Nothing is private in it.
I respectfully resubmit my question that unit for a payable item is piece(pcs) and it had to be piece(pcs) as it is but in BOQ its unit is month, we can say may be it is mistakenly typed but BOQ is duly signed by the Employer.
Now, If the Contractor claim for an item with unit (month)to be paid in accordance with BOQ, has more benefit to the Contractor.
But, the Engineer is certifying that item with unit Piece(pcs).

How to tackle such situation, who is on the right position whether the Employer or the Contractor and what could be the more references as per FIDIC 1987

Dear Raja,

Seems to me that the Employer made the mistake and has to live with it.  Two sites should be paid as (pcs) and the third site as (months).  Although there could be reasons for the difference, even if it is only a typing mistake, but the Engineer must follow the Contract as signed.  The theory is that the Contractor allowed for the different method of measurement when pricing the item.  The Engineer under FIDIC 4 is required to be impartial, even if appointed by the Employer.  If the Engineer insists on adjusting payments, then the Contractor has to submit a claim under clause 53.1, and then follow the contractual route, including asking for an Engineer's Decision and following through to Arbitration.  One difficulty with FIDIC contracts is that there is no remedy stated for the Employer's breach of contract.  

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Peter M. Elliott


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 before submitting a question.


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')

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

B Sc(Hons) in Civil Engineering

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