Construction Law/Ommission

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Question
QUESTION: Dear Sir,
I work as a QS in construction company. We are doing laying of Water pipes project. It is a remeasur contract under FIDIC red book 1999. In our BOQ one item say supply of Valve key, and other supply of Valves,( two BOQ items) But preambels said "Rate for supply of valves deemed to be include supply of key" Now our client omited above suppply of valve key item. Can I submit a Variation?
Thanking you
Regards
Bandula

ANSWER: Dear Bandula,

Thank you for this question.

It seems that there is a discrepancy or anomaly between the contract documents, or between parts of the same contract document. In such circumstances it is usual for the anomaly to be interpreted and corrected against the person relying upon the document or those who wrote the documents; that is you would be entitled to be paid for both items from the Bill of Quantities.

If the preambles are a part of the BoQ they have the same priority ranking but if they are in a separate document yo might have to look which has priority. Nonetheless it is still an anomaly to be resolved and I see no reason why both items from the BoQ should not be paid, unless it is clear that the contractor allowed for the cost of the key within his valve item rate and again in the key item rate. It would not be just to make or receive payment for the same item twice over.




I hope that this assists you.

Kind regards,
John Dowse

Follow me on Twitter: @CernoOrg
For my regular industry newsletter e-mail to info@cerno.org, stating SUBSCRIBE in the subject line

Training and consulting services are available, bespoke to companies and individuals.
John Dowse can be contacted by e-mail to info@cerno.org (When e-mailing, please include “AllExperts” in the subject line.)


---------- FOLLOW-UP ----------

QUESTION: Dear Sir,

In our BOQ, 1st bill is General items. It is include a boq item for Maintain of Engineer's main office (paying telephone bills, electricity bills, water bills,supply of stationary, Ect..)our rate is Rs.70,000.
00 Unit is Month. Now SL government increased electricity charges, now we loose that item. What I do Now?

Thanking You,
Yours faithfully
Bandula

Answer
Dear Bandula,

Thank you for this further question.

The precise answer will be dependent upon the exact wording of your contract. For now I will assume that the standard wording of the FIDIC 1999 contract applies.

FIDIC (Red Book) at sub-clause 13.7 allows for adjustment of the Contract Price where there are changes in legislation. Similarly sub-clause 13.8 allows for adjustment where there are changes in cost. How the SL Government increase in the cost of utilities is interpreted will be of importance.

If the price increase came as a result of a change of law, or it can be interpreted as being a change in the law, you will be entitled to claim under sub-clause 13.7; otherwise you will have to look to sub-clause 13.8.

Sub-clause 13.8 applies only of the relevant tables of adjustment have been completed in the Appendix to Tender. If those tables were not completed this sub-clause does not apply at all and the risk of price increases was then with the contractor. However if the price rise is exceptional and beyond what could have been considered at the time of tender you may be entitled to claim under the force majeure clause depending upon how that clause is worded.



I hope that this assists you.

Kind regards,
John Dowse

Follow me on Twitter: @CernoOrg
For my regular industry newsletter e-mail to info@cerno.org, stating SUBSCRIBE in the subject line

Training and consulting services are available, bespoke to companies and individuals.
John Dowse can be contacted by e-mail to info@cerno.org (When e-mailing, please include “AllExperts” in the subject line.)

Construction Law

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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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