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Construction Law/Variation order for C50 Mpa

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Question
Hi Jonathan,

Magandang araw po.

Our contract is based on For Building and Engineering Works designed by the employer. FIDIC 1999.

The general notes and specifications states that - all superstructures & precast slab min. compressive strenght 50 Mpa.
Items in the BOQ .
1. Bridges box girder 50 Mpa min. compressive strength - 475
2. To bridges post tensioned Girder 40 Mpa          -380

The Contractor poured concrete  all the bridges with 50 Mpa as per the specifications and general notes. Now the contractor is claiming for variation order for the bridges post tensioned to be paid as 50 Mpa instead of the 40 Mpa in the BOQ. the Engineer rejected the claim in the basis that the Contractor should have clarified about this issue during the tender stage.

How can the Contractor claim for this variation when there is ambigutiy in the item in the BOQ and the specifications and the owner is willing to pay.How to justify  the payment in accordance with General Condition since nothing is mentioned in the particular conditions and contract agreement.

Thanks and Regards,

Raul.

Answer
Dear Raul,

Magandang araw sa iyo Kabayan!

The Contractor shall execute, complete the Works and remedy any defects in accordance with the requirement of the Contract and with any instructions of the Engineer as per sub-clause 4.1.

The documents forming part of the contract is clearly stipulated under sub-clause 1.5 of which BOQ is not mentioned. Both Specification and Drawings are mentioned and form part of the Contract.

Further, sub-clause 1.5 states that the Engineer shall issue any necessary clarification should any ambiguity or discrepancy is found in the contract documents.

Therefore, considering nothing is written under Particular Conditions and sub-clause 1.5 is not revised, the Contractor is correct in proceeding to use 50Mpa concrete for both structural members as stipulated in the Specifications and mentioned in the Drawings. If it does not conform with the requirement of the Contract, the Engineer under sub-clause 1.3 may issue instructions to rectify, remove and correct.

Now,examining the basis of the Engineer in rejecting your claim and your concern about claiming due to difference in the rate specified and actual concrete used.

The Engineer is correct, though better approach should be to based the rejection under sub-clause 4.11. For your claim, you may try to submit a notice pursuant to sub-clause 20.1 and further substantiate by providing detailed particulars and request the Engineer for his determination as per sub-clause 3.5 applying a new rate for the post tensioned girder and mentioning that the rate in the BOQ is not appropriate since you used 50mpa instead of 40mpa and during the Tender the price offered is for 40mpa only. You may try.

Hope the above helps. Maraming Salamat.

Regards,

Jonathan L. Peralta

Construction Law

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Jonathan L. Peralta

Expertise

Questions relating to construction claims, Extension of Time, Variations, Interim Payment and delay analysis under FIDIC Form of Contracts.

Experience

Experience in the following sectors: buildings, residential, infrastructure, civil and marine works. Have worked for different international contractors in Myanmar, Vietnam and the Philippines.

Organizations
AACEI, U.S.A., Dispute Resolution Board Foundation,U.S.A., ASCE, U.S.A., PICE,Philippines

Education/Credentials
Bachelor of Science in Civil Engineering, Registered Civil Engineer in the Philippines

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