Construction Law/FIDIC RED 1999 Items Omitted from BQ / New Items
I have a situation where there are items shown on tender drawings and or referred to in the specifications but not measured in the BQ's. These are measurable items under POMI. I also have a number of "new items" appearing on "approved shop drawings" particularly associated with M & E installations.
Whilst I understand that measurement of each item of the permanent works should be paid for under Clause 12 thus picking up the missed items from the BQ.
Q 1. Have we an entitlement to recover additional items shown on "approved shop / issued for construction drawings / as-built drawings" in our measurement of the permanent works or is it just items missed form the original tender drawings? After all this is what represents the permanent works.
Secondly (and more importantly):
I have an item within the General Conditions and Preliminaries BQ which reads:
"The Tenderer is required to allow in this Bill for all matters referred to in the Tender Documents and not priced elsewhere in the Bills of Quantities. No additional payment will be made for any matter detailed or inferred in the Conditions of Contract, Specifications or drawings for which he has not included a price in the Bills of Quantities".
"Where any Clause, Sub-Clause or Item has not been priced, it shall be deemed that the value of any such Clause, Sub-Clause or Item has been included elsewhere within the Bills of Quantities. Any Clause, Sub-Clause or Item for which are deemed to be covered by other prices in the Bill of Quantities shall be entered by the Bidder only as “Included”.
Q 2. Does the above have any influence on items omitted from the BQ'S in measurement of the permanent works / or given the order of priority of documents where the BQ is at the lower end does the contract take precedence over this Preamble item, thereby allowing us to our entitlement under Clause 12?
Q 3. Given the same issues as above applying to elements of the permanent works (measured in the BQ's) which have "Contractor Design Responsibility" have we the same entitlement under Clause 12?
Many thanks for your help.
Thank you for this question.
For the present purposes I will assume that you are engaged under a contract for which the Contractor is not liable for the design and specification of the Works.
In a contract requirement final measurement of the works, all work is to be measured irrespective of whether it was shown on the drawings or not. Where a method of measurement is stated, some work activities will be deemed included within other work items and will not be measured separately; for example placing concrete is measured but items such as temporary forms or working the concrete might not be, depending upon the method of measurement adopted.
In respect of drawings, changes (after tender) to drawings should be made by the Employer/Engineer and instructed to thew Contractor. In respect of work shop drawings, these should not contribute to the design development. If any design development is necessary through workshop drawings, the Employer/Engineer should approve the changes and issue instructions accordingly.
Regarding the extract you have cited, this is a "catch all" provision intended to make the Contractor responsible for matters that the Employer/Engineer did not foresee or overlooked in the preparation of the documents. Very often, although not always, these can be worked around; each case will have to be considered separately.
For example, in relation to your Q2, if the contract says that the Works will be measured in accordance with POMI and the BoQ omits an item, the anomaly should be corrected by amendment of the BoQ. It must be recognised that the Employer had much longer to prepare the design and BoQ than the Contractor did to price it. This is reflected in the allocation of risk within the adopted form of contract. Under FIDIC REd Book 1999, for example, the Employer take sthe risk on quantity changes and errors in the BoQ.
Where the Contractor has design responsibility it also has an obligation to check the detailing of the other contract documents, including the BoQ and it might not have the same entitlements.
I hope that this assists you.
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