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Construction Law/Omission for L.S contract

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Question
QUESTION: Dear Peter

I'm working in a L.S contract following Fidic 1987 reprinted in 1992

The BOQ is part of the contract's documents there are bunch of items in the BOQ the project doesn't need them at all they were not executed nor needed and the contractor knew that so he didn’t prepare or allocate any resources for them…

NOW I have 2 parts Question:

1) Does the employer have the right to omit them from the scope of work as they are not needed for the sake of the project?? Under the sub-clause 51.1 (b)


2) If the answer of above is "'YES''
What if the employer issues the letter of omission after almost 90% of the project is completed?
Is there any limit time to issue such letter of omission?

ANSWER: Dear Peter,

Thank you for this question.

Unless the contract form has been modified the Employer will retain a right of variation and can require the omission of work items subject to the contractor being compensated where it can demonstrate entitlement to compensation. You have not indicated the nature of the items, hence I am unable to giver an initial opinion beyond this.


As to the timing of the omission it is unimportant except to the extent that the contractor may argue that the late omission prevented him from mitigating costs at an earlier stage.


I hope that this assists you.

Kind regards,
John Dowse

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

QUESTION: thanks a lot for replying:

the items are
1) some construction layers as the project is road & infrastructures these layers were not needed due to after excavations we found the existing ground needs no modifications.
2) re-levelling existing underground cable as the depth of the cable was ok&safe.
3) providing office and surveying machines for the engineer as the contractor did not and the engineer did not ask him not to provide both silently skipped this matter.

The above items the client indends to omit them from the boq subsequently the scope of work

thanks in advance

Answer
Thank you for this additional question.

All the items listed were in the BoQ but, in view of the fact that this was a lump sum contract, what was the purpose of the BoQ and who took the risk on quantities changing?

If the risk lay with the Contractor (which is typically the case in a Lump Sum contract) the Contractor has a right to payment, or is entitled to loss of profit if the items are omitted. However if the items were described as provisional or contingency works, which would require the Engineer's instruction before the work was performed, the work can be mitred probably without any penalty on the Employer.


I hope that this assists you.

Kind regards,
John Dowse

Follow me on Twitter: @CernoOrg
For my regular industry newsletter e-mail to info@cerno.org, stating SUBSCRIBE in the subject line

Training and consulting services are available, bespoke to companies and individuals.
John Dowse can be contacted by e-mail to info@cerno.org (When e-mailing, please include “AllExperts” in the subject line.)

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John Dowse

Expertise

Legal; contract interpretation; quantum; delay analysis. Practitioner in arbitration, adjudication and mediation.

Experience

Thirty-three (33) years experience in building and construction, at all levels both within contracting and consulting organisations. Practising arbitrator, adjudicator, and mediator. Faculty approved trainer for the Chartered Institute of Arbitrators. Lecturer on construction contract forms and dispute resolution practices.

Organizations
Chartered Institution of Civil Engineering Surveyors Chartered Institute of Arbitrators Institute of Directors Society of Construction Arbitrators

Publications
Various UK and International construction and legal publications.

Education/Credentials
LLB (Hons), Pg Dip (Legal Practice), MCInstCES MCIArb MIOD Barrister

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