Construction Law/technical proposal

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Question
QUESTION: Dear Mr. Elliott,
I've been working in the engineer's team on a water treatment plant project (yellow book, fidic edition 1999) and I have the following issue:
The cotractor's technical proposal is a part of the contract but in the attached drawing to it there are much details shown e.g. dimensions mainly. Now the contractor submits to the resident engineer the design documents for approval but there are deviations in the dimensions from the ones in the technical proposal drawing and the contractor argues that there is no a variation because the technical proposal has been just an idea. Strictly speaking it is really a variation but on the other hand design is an iterative process and it is normally for final design to differ from concept design. I'll be glad to receive your opinion on the matter.

Best regards
Radi

ANSWER: Dear Radi,

The important thing is whether or not the design documents are compliant with the Employer's Requirements.  If they are compliant, there is nothing more to be said except just that.  If not, then they must be modified until they are compliant.  It is assumed that the technical proposal was compliant, but was not the only solution, or even the optimal solution.  Consider the time allowed for the Contractor to produce his proposals and the pressure on him.  Once the Contract is signed, he can revisit the Employer's requirements and refine his construction drawings.  It is not a variation as it has not been ordered by the Employer (the Engineer).

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

QUESTION: Dear Mr. Elliott,
Thanks for the prompt reply. If I can add some detail to my question I'd like to say that in the case the deviation is significant and not just a refinement  of the drawings and it will affect the accepted contract sum and that's why I think that a reduction of the accepted contract price must be done since the tender price is based on some specifics implemented in the technical proposal.

Best regards
Radi

Answer
Dear Radi,

This contract is a lump sum contract.  It is not a remeasurement contract.  The Contractor took the risk of cost, over or under.  If the design complies with the Employer's Requirements, then I would say that you have no contractual basis to request a reduction in the Accepted Contract Sum. You may hit a problem if he has under priced another section and you open the door to revise the Accepted Contract Sum.  I presume that the bid was the lowest compliant tender and thus you have a better price that you would have received from other bidders.  

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Peter M. Elliott

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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 www.eotprotocol.com before submitting a question.

Experience

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')

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

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B Sc(Hons) in Civil Engineering

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