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Construction Law/LS contract - item not listed at BOQ but exists at DWG

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Question
Dear sir,

We have a LS. project under FIDIC 1999 red book , there is an item Not listed or specified at BOQ - But exists at drawing - so as per FIDIC how we can claim for such this costly item since the consultant is rejecting to discuss the idea ?  

Also please tell me what is the Max delay percentage allow by FIDIC since our project behind the schedule by (2.14%) and the consultant send us a Notice To Correct as per clause 15.1 - we still have more than 10 months to project end   

thanks

Answer
Dear TAREK,

If the missing item in the BOQ is reflected in the tender drawings and specification the Contractor should have clarified the issue and add the cost of such item in his offer if it is part of his obligation (or defined under the scope of works).

You may try to submit a claim notice in accordance with sub-clause 20.1 and mention to the Engineer that the Accepted Contract Amount does not include the cost for the missing item. But I doubt the Engineer will agree.

Since your contract is lump sum, the Engineer may argue that the missing item in the BOQ is mentioned in the Drawings, Specification and Scope of Works and during the Tender Stage the Contractor should have included the cost of such item in his Tender Offer. He may reject the Contractor’s claim for additional payment for the missing item based on the condition as stipulated under sub-clause 4.11 and sub-clause 1.5 . The Accepted Contract Amount is based on the tender documents and the cost for all items and works mentioned in the Tender Documents should be included in the Tender Offer.

Regarding delay, sub-clause 8.6 states that if the progress is too slow to complete the Works within the Time for completion and the progress has fallen(or will fall) behind the current programme, the Engineer may instruct the Contractor to submit a revised programme with supporting documents and the Contractor should adopt this revised programme to complete the Works within the Time for Completion.  Should there be any increase of working hours or manpower required as per revised programme, the Contractor shall borne all cost incurred.

If the Contractor fails to comply with the Time for Completion, the Contractor shall pay delay damage to the Employer pursuant to sub-clause 8.7 at a rate and maximum amount(if any) stated in the Appendix to Tender.

You need to comply with the Engineer’s Instruction to remedy, repair, correct, make good any defective works or works not in accordance with contract requirement .

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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