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Construction Law/Increase in Quantity of Item over the BOQ

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QUESTION: We are working under FIDIC 1999.
Clause 12.3 (a)(i) gives us right to ask for a revision in rate for the item if the quantity of that item exceeded by more than 10% of that in the original BOQ.
My question is how do we ask for a higher rate if the our original rate in the BOQ is already high.
What would be our grounds to justify a higher rate if we submit a revised rate analysis.
Kindly advice.
Thank you,
Abdul Moid

ANSWER: Dear Abdul,

Thank you for this question.

Firstly I would point out that the clause you refer to can be used to reduce a rate as well as increase one; it is for the contractor to demonstrate that an increase is due.

Secondly, an adjustment in the rate does not necessarily have to relate directly to the build up of the original tender/BoQ rate.

Thirdly 12(a)(i) does not operate alone; it must be read in conjunction with 12(a)(ii)-(iv) inclusive.

Assuming that all the conditions of 12(a)(i)-(iv) have been met, you should look at the elements of the operation that cost you more. For example, some activities are more labour intensive. An increase in the quantity of work would give rise to an increase in labour. Also it could be that the timing of the extra quantity of work required the contractor to bring on additional resources and that the efficiency of the resources was then reduced overall.

If you can be more specific about the nature of the work I may be able to give more precise guidance as to what to look for.



I hope that this assists you.

Kind regards,
John Dowse

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

QUESTION: Thanks John.
We have a situation where the quantities of excavation to reduce levels has increased by 300%. Means this was bulk excavation.

Answer
Dear Abdul,

Thank you for this question.

If you consider that the excavation work was bulk excavation but that such an operation was not planned, I suggest you consider whether any of the pre-existing rates and prices are applicable at all, as bulk excavation work is usually performed in a very different manner to other excavation work, and value the operations from first principles based upon known facts.


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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