Construction Law/New Rates 12/3

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Question
Hi Kermit:
Using FIDIC 1999. Consider a situation, BOQ units of an item is 100. Project completed with a varied qty of this item as 30. Contractor does not claim new rates. Completion certified. In 365 days maintc period defects appear. Not contractors risk. Engineer asks to redo the same item with increased qty of 110. In this period the rates in the market has increased a lot.
1. Can the contractor refuse to work?
2. Can he ask for new rates since the qty has varied from 30 to 110?
3. Can the Engineer refuse new rates since the rates exists in BOQ and the variation is from 100 to 110 (small)?
Thanks
Hidayatullah

Answer
Good Day Hidsystullah,

Sorry for not getting back to you sooner.

Having read your questions my answers are as follows:

If the defects occurred within the defects notification period of 365 days, the Contractor has an obligation to rectify the defects within that period and cannot refuse to carry out the works. The Contractor is also obligated to carry out the works (110 BOQ Qty) at the rate in the BOQ and should not refuse to do so. If in accordance to sub-clause 13.8 "the adjustment for changes in cost" is justified by the Contractor, then the Contractor is allowed to adjust the rate accordingly. In this case the Engineer is required to determine the validity and correctness of the calculation of this new rate and approve/disapprove as guided by the cost indices of the market.

If the defects are outside of the 365 days Defects Notification Period and the Performance Certificate has been issued 28 days after the Defects Notification Period has expired, then the contractor is within his right to refuse or carry out the works at the new rate that is in line with the present market.

I hope this answers your question

Again i apologize for the delay in responding to your question

Best Regards  

Construction Law

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Expertise

All questions pertaining to Construction Law isses, ie, Claims EOT Loss of Profit Variations Damages ADR Delays and disruption Professional Negligence

Experience

Certified Arbitrator/ Mediator & Senior Quantity Surveyor Contract manager for Major Construction Firm From 2008 - 2010 Quantity Surveyor for over 16 years dealing with all issues of construction disputes, claims and general contract administration.

Organizations
Member of CIArb Member of ISTT (Institute of Surveyors of Trinidad & Tobago)

Publications
Thesis for Robert Gordon University re: "Professional Negligence in the Construction Industry[20,000 words]" Report for Deakin University "Failures in Slipform Construction [10,000 words]"

Education/Credentials
LLM in COnstruction Law & Arbitration (Robert Gordon Institute 2010) Graduate Diploma in Quantity Surveying (Deakin University Australia - 2007) Civil Engineering Technician Diploma (John D Institute Trinidad 1995) General Draghting Diploma (S'fdo Tech Inst. Trinidad 1984)

Awards and Honors
Distinction in Quantity Surveying via Deakin University (Graduate diploma in Quatity Surveying)

Past/Present Clients
VINCI COnstruction Grans Projets Kee Channona Limited (Trinidad & Tobago) NH International (Caribbean Limited)

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