Construction Law/abiguities

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Question
Dear Mr. Peralta,

I am dealing with a certain ambiguity in a red fidicn 1999 contract.
The hierarchy of the documents is as follows:
1.Contract Agreement;
2.Letter of acceptance;
3.Appendix #3
4.Price offer;
5.Bills of quantities;
6.Particular conditions;
7.General conditions;
8.Contractor’s technical proposal;
9.Employer’s requirement and technical specification;
10.Q&A;
11.Drawings;
12. Other documents

The technical specs reqire that the contractor deliver spare parts for the machines but it is up to him to prepare tables with the necessary items and to price them. Such tables are not part of the BoQ's prepared by the employer. In the Q&A there is an instruction that such tables must be prepared by the contractor and attached to the BoQ's. Up to now things seem OK but once the contract has been signed the facts depict a different picture:
1. There are no such tables with prices attached to the BoQ''s;
2. Contract agreement tries to define the SOW an there is no word about delivery of spare parts;
3. The BoQ's take precedence over the technical specs and Q&A and there are no separate items in the B&Q's for delivery of spare parts.

My conclusion is that in case the B&Q's were the lowest priority document the costs for delivery of the spare parts would have been covered by the other items in the B&Q's but in the current case the facts show that the contract price has been built up considering the items provided by the employer in the B&Q's.
So to treat the ambiguity I must refer to sub-caluse 1.5 and instruct the contractor to deliver the spare parts and issue a variation. The employer insists that there is no a variation and the contractor must provide the spare parts with no additional payment.
I wiil higly appreciate your opinion.

Answer
Dear Rado,


Based on what you provided it is clear that the Contractor is required to deliver the spare parts for the machines . Thus the cost of delivery should have been included in his tender offer.

Though the delivery of spare parts is not mentioned under Scope of Works, it was already mentioned in the Technical Specification and as a matter of fact, the Contractor was instructed to provide a table of spare parts with their corresponding cost.

I assume that the Contractor is also responsible for the delivery of machines required under the contract and that may be the reason why such table of spare parts was not included in the tender docs.

I am of the opinion that the cost of delivery should have been included in the contractor's offer, the contractor should provide the table and the contractor should deliver the required spare parts with no additional cost. Sub-clause 4.11 applies.

Hope the above helps and you can rate me.Thanks.

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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