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Question
We tendered on the basis of a BoQ with Particular Conditions identified. There was a negotiation process resulting in a letter of award and we started work. Contract documents were given to us for signature about 2 months after start of work and we duly signed (without doing a full check on the contract details as this had already been done at tender stage)
It is now apparent that a number of the particular conditions have been changed by either the Consultant or Client or both (to our detriment) but there was never any discussion or notification of these changes that have now been discovered.
Can we be bound to these changes even though we started the contract based on a letter of award that related to the earlier conditions that were in the tender document?

Answer
Dear Terry,

Thank you for this question.

This type of occurrence is one that I am being asked about very regularly. Whilst it is unconscionable conduct for an Employer materially to amend the terms of the contract and not advise, it is very poor practice of contractors not to read the contract and check it against the prior information and clarifications.

Whilst I can suggest that in this situation you have a right to claim for amendment and/or variation of the contract from the tender basis, I would need to be certain on the facts of any interim discussions and the wording of the contract to be certain as to the Employer being wholly liable.



I hope that this assists you.

Kind regards,
John Dowse

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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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