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Construction Law/Contract queries-fidic


The project is based on Fidic, lump sum contract with the following particular condition:-
“Priority of documents clause is deleted and new clause inserted stating that in the event of any discrepancy between the drawings and the description in the BOQ and/or specification same shall be referred to the Engineer. The Engineer shall have the right to choose between these. If in the opinion of the Engineer the more stringent shall govern then the Contractor shall be obliged to comply with at no extra cost”.
Kindly advise on the following:-

1)    The excavation for foundation is to be carried out up to the ground water table and then to be back filled with selected fill up to formation level.
  Contract says the soil report is approximate guide based on conditions existed and no guarantee for the accuracy and no responsibility is assumed by the employer/Engineer. The water table was at 2.8 meter below existing ground level as per the soil report.
During the execution, ground water table is found at 1.8 meter level and accordingly the Engineer revised the drawings, with the reduced depth of excavation and backfilling as per the water table at time of execution.
The Engineer’s view - The work of excavation/back filling is reduced by 1 meter and it is negative variation.

Contractor’s view - The risk related to the soil report/ground water table was put on the Contractor and therefore in case of benefit for the same it cannot be passed on to client. There is no reduction in the intended original scope.
2)        Waterproofing for substructure (footing, neck columns, tie beam)
a)   The specification calls for 2 layer of SBS membrane
b)   Typical drawing shows 2 coats of bitumen paint
c)   BOQ states 1 layer of bitumen membrane
Engineer’s Instruction - To replace the single layer of SBS membrane (described in BOQ) with 2 coats of bitumen paint with cost saving to client.
Contractor’s view: - The two coat bitumen paint is in the drawing and acceptable to Engineer and therefore it is not replacing but choosing appropriate from the various given in the contract (discrepancy clause is not for reduction to the contract price).
3)         Shoring for excavation for foundations
General specification is given for shoring and contractor is responsible for stability of sides of all excavation.
There is a item for shoring in BOQ and contractor has priced.
Contractor carried out open excavation and completed the works, approved by Engineer and there was no need for any special shoring to be carried out.
Engineer’s view: - The money for shoring in BOQ is not payable as it was not carried out.
Contractor’s view: - Deduction is not justified as shoring is only to facilitate the construction and there is no change in scope of work.
Further not executing the shoring work is purely contractors risk, how the benefit can be passed on to client.
Contractor’s view: - The discrepancy clause is to protect the client against any claim for the extra cost by the contractor incase more stringent requirement is to be followed/governs and not for the reduction to the contract price.

Girdhar Gopal

Dear Girdhar Gopal,

Lump sum contracts and BoQ's are an oxymoron, unless the purpose of the BoQ is defined very carefully.  I suggest that your engineer is confused by his experience of remeasureable contracts.  Lump sum contracts are not remeasureable.  There was a long discussion on an internet forum about BoQ's and lump sum contracts, which amended my view of them.

1. Engineer is incorrect, but you might get him to agree to loss of overhead recovery and profit.

2. I agree with the Contractor's view.

3. Construction method is the Contractor's risk, which is why most excavations are measured net and the over dig or shoring is the Contractor's choice and risk.  The Engineer is wrong.

What part of Lump Sum Contract does the Engineer not understand?  Ask him if he would have paid extra if the water table was lower, or extra shoring was needed?  His application of the Contract must be equitable.  He should not try to hedge his bets and he should be honest with the Contractor.

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Peter M. Elliott


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 before submitting a question.


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