Construction Law/omission items


Please kindly advice as follows.

Is it the right of Client to omit any bq items in the contract document that was already awarded to us? It was not stated clearly in the contract document. It has happeneded where they just give us notice and said that xxx are omitted from the contract. I dont think this is acceptable.

Is it also the right of Client to take back such omitted items to do it themselves? I dont think this is acceptable also right? The client is still considered as a third party and if they are to do it themselves, they should not put in the contract, isnt it?

We are now working on another project and we wish to write in to them to ask if they will omit bq items again. could you advise how should i write to ensure that they dont 'bully' us contratually.

Look forward to your advice.

Thank you.


Dear Escada,
Thank you for your inquiry.  From your question statement it appears that your Client invoked a typical FIDIC-style contract provision which allows the Owner on a BOQ job (Construction Only with Bill of Quantities) to increase or decrease the scope of the Works by +/- 20% of the originally-awarded contract price (“CP”).  If the deleted scope falls within the agreed, I presume without knowing the specifics of your contract, 20% CP range, then the Owner/Engineer has to send a notice to the Contractor identifying which items / quantities have been deleted from the scope AND to notify the Contractor of any other cost & time implications of such deletion, such as time of performance, reduction of preliminaries, profit expectation, bond, insurance, etc.  
The +/- 20% may, or may not be, applicable in your contract, and without knowing more facts, I can’t state whether the Owner action is justified in your case, but if it is applicable, the Owner’s reasoning and rationale may be irrelevant.  Likewise, unless the Owner has a policy dictating uniformity of deletion of certain works, the other contract, albeit similar and with the same Owner/Employer may be exempt from application of such deletion.  Each contract stands on its own.
The question of writing samples cannot be answered in this forum because such writing is always very fact-specific and cannot be used in a cookie cutter / cut-n-paste fashion.  To come up with a coherent statement of a claim under a contract requires diligent discovery of pertinent facts and, usually, is a very time-consuming, and more often than not, expensive proposition.  I suggest that your management considers hiring a commercial person to administer such affairs, or a lawyer, who have to be very skilled in such writing.  Although I can feel your pain and frustration – as this is a typical situation in my line of work – I am sorry that I have to limit my response here, as I cannot be more helpful from a distance.

Gerry Sverdlin, PE, Esq.

Construction Law

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Gerry Sverdlin


Questions I can answer or provide assistance to reflect the following subjects: contract terms and conditions, interpretation of ambiguity, construction management and practices, claims for costs and time, variation / change orders, disputes, dispute resolution techniques and organizations, claims for extra work or materials, delay analysis, disruption or interference, defective design and negligent supervision, construction risks and mitigation, warranties and insurance. Questions I can NOT answer: too numerous to list here.


Mr. Sverdlin provided over 20 years of services in dispute resolution and expert opinion of complex construction claims for extra work, delay & acceleration, defective design & installation, unauthorized deviations, differing site conditions, productivity loss, labor & material shortage, owner’s interferences, force majeure, bonding, warranties and insurance coverage. Mr. Sverdlin participated in dispute resolution proceedings regarding 10 mile sub-aqueous outfall tunnel at Deer Island Treatment Plant – Boston Harbor Project, and claims arising out of construction of the South Boston / South Bay Interchanges for the Central Artery/Tunnel Project in Boston, Massachusetts, USA, and multiple proceedings Middle East. Specialties: Mr. Sverdlin established expertise in construction contract preparation under EJCDC, AIA, FIDIC and agency-specific bespoke contract frameworks: procurement administration, resolving defects in scope of work coverage, specification and estimates, change order processing, project controls & cost recovery. Engineering practice encompasses design & procurement management of highway & rail transportation systems, wastewater treatment and drainage networks, key performance indicator regimen.

2011 - CIArb Member Grade 1999 - Attorney at Law – Massachusetts Bar, BBO # 642980 1992 - Registered Professional Engineer - PE: Lic. MA-36839 - Civil Affiliated Memberships: MBA - Massachusetts Bar Association DRBF - Dispute Review Board Foundation TASA - Technical Advisory Service for Attorneys

2010 - 2011 - American University in Dubai -Grad. Sch. of Business Administration Construction Contracts, Means & Methods, Claims & Changes, Project Controls March 2009 - Chamber of Commerce, Colombo, Sri Lanka – Construction Management Seminar Changes & Claims, EOT/Delay Damages, Loss of Productivity – Measured Mile 2000- 2007– Boston Architectural Ctr & Wentworth Inst. of Technology - Construction Law 1991- 1993 - Northeastern University, Boston, MA – Land Surveying, Sewage Disposal System Numerous continuing education specialty courses Suffolk University Law School - Juris Doctor, law -1993 – 1997 Northeastern University - MS, Construction / Public Works Management - 1993 Polytechnic University - BS, Civil Engineering 1982 – 1985

Past/Present Clients
Representative Projects Dubai International Airport UAE Muscat & Salalah Int'l Airports Oman South River Dredging Mechanical Scituate, MA Permitting / Boundary Dispute (Title V) Worcester, MA Hazardous Material Site Assessment New Bedford, MA Groundwater Pollution Monitoring Burlington - Woburn, MA Hazardous Material Disposal - Site Clean-up Wrentham, MA Sewer Rehabilitation Project – STEP Abu Dhabi, UAE Dubai Metro - Road & Transportation Authority, Dubai, UAE Boston Harbor Project - Deer Island MWRA - BHP Winthrop, MA 1,200 MGD Waste-Water Treatment Plant Doha North Sewerage Treatment Works Ashghal, Doha, Qatar 254K m3/d STP, 25-km triple force mains, 33-km Interceptor Sewers 10,000 l/s PS Central Artery / Tunnel Project - MHD / MTA Boston, MA 116 lane-miles Old Colony Railroad - Commuter Rail (Boston, MA 70+ mi) Cherry St. Reconstruction Full-Depth Bridgewater, MA 2.1 mi Scenic Roads Reconstruction Town-wide Wayland, MA 8.7 mi Strawberry Hill Rd Reconstruction Full-Depth Concord, MA 1.7 mi Craigsville Beach Rd Reconstruction Full-Depth Hyannis, MA 3.4 mi Water Main Replacement Southborough, MA EMAAR – Gulf III Towers, Dubai, UAE Mixed-Use Hi-Rise Peabody Properties Residential Hi-Rise Lynn, MA Bristol Properties Shopping Mall Attleboro, MA May Institute (children w/special needs) Institutional Randolph, MA Bear Hill Executive Park Commercial Waltham, MA Prospect Hill Executive Park Commercial Waltham, MA Residential Community Subdivision 128 lots Hopkinton,MA Retirement Community Subdivision Residential – 126-lots Warren,MA Independence Mall Retail Kingston, MA Mashnee Village Subdivision Residential – 54-lots Buzzards Bay, MA Hyannis Industrial Park Heavy Commercial

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