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Construction Law/Clause 52.3 Power of Engineer to fix Rate

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Question
This is about a road construction in Ethiopia, Africa.

Project: Yabello – Metagefersa Road Construction Project

Client: Ethiopian Roads Authority/ERA
Contractor: SHED General Construction PLC (Local Company)
Consultant: Transnational Engineers PLC ( my Company)

Contract Type: Measurment / BOQ, the Contract is governed by FIDIC Fourth Edition 1987 version.

Contract is signed in August 2011 and more than 50% is accomplished to date.

My Question is: about a unit price of one particular item (Reinforcement bar).
During the Contract signing the Contractor has offered 280,000 Birr/ton for Reinforcement steel bars.

Item No.   Description   Unit   Contract Qty   Unit Price   Amount
33.12 (b)   High-tensile Steel Bars   ton   16.31    280,000.00   4,566,800.00
         

Though the Contractor has won the competitive bid with the overall project cost of 133,500000.00 Birr (Birr= Ethiopian money), there was a Pre – Contract Negotiation Meeting before signing the Contract, whose minutes will be part of the contract documents.
1)   According to The Minutes of Pre-Contract Discussion held on August 01, 2011; No. 5 says the following:  
“The Client, ERA noted that the rate given for pay items 33.12 (b) Steel Reinforcement, high tensile steel bars ETB 280,000.00 per ton is very high. Hence, ERA requested the contractor to submit cost breakdown. The contractor submitted price breakdown for the above bill items i.e. Bill item 33.12 (b) Steel Reinforcement, high-tensile steel bars.

ERA reviewed the rates and found it to be unrealistic. However, since the total offer of this bidder is found to be the best offer for this project as per the multiple bids evaluations of 12 Contractors, ERA accepted this unit rates only up to the quantity given in the Bill of Quantity i.e. 16.31 ton for Bill item 33.12 (b) Steel Reinforcement, high-tensile steel bars.
Nevertheless, ERA and the Contractor agreed the unit rates, if there is any additional quantity under these bill items during the construction period, the rate shall be adjusted to 28,000.00 ETB (ETB Twenty Eight Thousand only)

2)   According to Conditions of Particular Application, Sub-clause 2.5 Priority of Contract Documents; “The Minutes of Pre-contract Discussion” is one of the documents that form the contract document, and prevails the conditions of Contract in precedence.

Problem:
1.   The actual quantity on the project site now is above the original BOQ quantity i.e.

Unit   Description   Contract Qty   Actual Qty.   Difference
33.12 (b)   High-tensile Steel Bars   16.31 ton   44.20 ton   +27.89 ton

Contractor’s Position: So, in principle we should pay the excess quantity from BOQ, with 28,000 Birr, however the Contractor thinks this is not reasonable.
And consequently, claims the rate adjusted during the pre contract negotiation shall be abandoned and the original rate i.e.280,000.00 shall be used throughout.
Consultant’s Position: the rate fixed during the pre contract negotiation is inconsistent with Clause 52.2, which says rate shall be adjusted only when quantity reaches 25% above the BOQ quantity and 2% of overall project cost. The original cost shall apply upto this point and rate shall be adjusted for the rest
Client/ERA: wants the pre contract negotiation shall apply.


So the question is which rate shall apply for the increase in quantity as indicated in the tabulation above?
One more question is the source of  the difference in quantity……does it matter if the difference is from additional work due to variation or excess quantity due to design quantity calculation error?

Answer
Dear Samson Soloman
Hello
As per contract during the negotiation client and contractor were reached to the understanding "Nevertheless, ERA and the Contractor agreed the unit rates, if there is any additional quantity under these bill items during the construction period, the rate shall be adjusted to 28,000.00 ETB (ETB Twenty Eight Thousand only)"

ERA had presumed the variation for increase in quantity of the item,it is not correct.During the execution the quantities are increased from the BOQ . The new rate will be applicable as per provisions of contract agreement and shall be evaluated under clause 52.1.The new rate shall be applicable for whole executed quantity of the item in the contract.

source of  the difference in quantity for new rate of the item will not matter for the difference is from additional work due to variation or excess quantity due to design quantity calculation error?
The new rate shall be evaluated by the Engineer in consultation with ERA keep in consideration that contractor will not loose original profit for the quoted rates for the BOQ quantity of the item and for excess quantity.

I hope this will help to you.

With regards
Sanjay Khandelwal  

Construction Law

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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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