You are here:

Construction Law/Re-Mesurable Contract under Fidic

Advertisement


Question
QUESTION: If there are items which are not in the BOQ but in tender drawings and scope of work,can the contractor claim for the payments for the works as per FIDIC ? (Re-Mesurable Contract)

ANSWER: Dear Sithum Gayan,

The simple answer is yes in normal circumstances.  The BoQ is not guaranteed to be accurate in a remeasureable contract. You can ask the Engineer to confirm that the items are required to issue the necessary Variation Order with the appropriate rate.  

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

QUESTION: Thanks for your quick response. Fidic 1999 which clauses we can used for that, clauses 12 or 1.9 or 14.3(f) please clarify to under which clauses we can claim that.As per Engineer their not ready to pay us becouse its already there in Scope of work and Drawings. In post contact period we are not asking them any quarry or details which are not in the BOQ.i hope your breif explaination.

Answer
Dear Sithum Gayan,

Relevant clauses are 1.1.1.10, 12.1, 12.2 (a), 12.2 (b),

The FIDIC Guide to Clause 12 of FIDIC 99 states

'It is important to verify, before the Bill of Quantities is issued to tenderers, that it includes the correct quantities and item descriptions of the work defined in the Drawings and Specification. Clause 12 requires the work to be measured and valued, based upon the Bill of Quantities and/or other appropriate Schedules. Generally, tenderers will have limited opportunity to verify the correctness of the Bill of Quantities which they receive.
However, during the measurement of the completed works, omissions in the original Bill of Quantities may be discovered, or be alleged by a Party. In such a case, a dispute may arise as to whether an additional Bill item will be required, or as to whether the work is covered by another item in the Bill of Quantities. Although resolution of the matter may need to take account of various provisions in the Contract and of the applicable Laws, it is suggested that the effect of this Clause 12 would typically be as follows:
- If the Bill of Quantities includes (either incorporated by reference or specified) principles of measurement which clearly require that an item of work be measured, and if the Bill of Quantities contains is no such item, then an additional Bill item will required in order to satisfy the requirement for measurement in accordance with such principles.
- If the Bill of Quantities includes (either incorporated by reference or specified) principles of measurement which do not clearly require that a particular item of work be measured, and the work was as described in the Contract and did not arise from a Variation, then measurement in accordance with such
principles does not require the addition of a new Bill item.
- If the Bill of Quantities does not include principles of measurement for a particular item of work, and the work was as described in the Contract and did not arise from a Variation, then measurement in accordance
with such principles does not require the addition of a new Bill item."

You submit your claim under clause 20.1 and include the amount in the IPC under clause 14.3 f, but be ready for the Engineer to delete the sum from the IPC until the amount is agreed. The whole basis of a BoQ is that it is an estimate and the Employer takes the risk of any inaccuracies, unlike a lump sum contract.  

Construction Law

All Answers


Answers by Expert:


Ask Experts

Volunteer


Peter M. Elliott

Expertise

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

Education/Credentials
B Sc(Hons) in Civil Engineering

©2016 About.com. All rights reserved.