Construction Law/BOQ Quantities

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Question
Magandang araw kabayan.Pasensya na kung ikaw naman ang maistorbo ko kasi yung natanong ko dati mukhang busy kaya wla pa reply at sana matulungan mo ako kahit area ko ay sa Qatar. in your own general view i'm quite confused between the following Clause 51(1) - Variations & Clause 55 - Quantities of Qatar GCOC as stated:
Clause 51(1)- Variations
The Engineer has authority to make any variation in the form or quality of the Works or
any part thereof. By virtue of this authority he has the power to order the Contractor to do
and the Contractor must do any of the following:
(a) Increase or decrease the quantity of any work included in the Contract.
(b) Omit any work.
(c) Change the character or quality or kind of any such work.
(d) Change the levels lines position and dimensions of any part of the Works and
(e) Execute additional work of any kind necessary for the completion of the
Works.
No such variation will any way vitiate or invalidate the Contract. but the value (if any) of
all such variations shall be taken into account in ascertaining the amount of the Contract
Price.
Article 16 of Law No 8 of 1986 amended by Law No. 26 of 2005 restricts the right of the
Engineer to increase or decrease the Works by more than 20% of the Contract Sum.

Clause 55 - Quantities

This clause conftrmS the concept of a Lump Sum Contract. The quantities in the BOQ are
to be taken to be the actual and correct quantities of the Works to be executed by the
Contractor in fulfilment of his obligations under the Contract. The Employer therefore
has tremendous responsibility to ensure that the BOQ supplied is accurate. To this extent
the Qatari Government requires that all BOQ's should be prepared by approved QS firms
in order to fix accountability. Private Owners will be well advised to follow suit.
Contractors similarly should ensure when tendering, to the extent possible, that the
quantities measured in the BOQ are reasonably correct as any error in or omission from
the BOQ will not be any grounds for adjusting the Contract Sum or vitiating or
invalidating the Contract.
The exceptions are as provided for in Clauses 51 and 58 (1)
~6

NOTE on PRICING
1.7   The attention of the Tenderers is drawn to Clause 55 Quantities of the General Conditions of Contract and note should be made that the Works will not be re-measured.  With regard to the priority of the several documents forming the Contract as stated within the first paragraph of Clause 6(2) Documents Mutually Explanatory, of the Conditions of Particular Application, the Contractor shall check the descriptions and quantities and allow where provided for any errors, additions or omissions considered necessary to establish a lump sum firm price.  At any time, if requested by the Engineer the Contractor shall provide a complete and detailed breakdown of any such insertions.  Payment will be made only for quantities in the Bills of Quantities, which upon award of the Contract are to be taken as the actual and correct quantities of the Works.



The situations:
1. We had a project the original contract amount is QR. 377M due to changed in design & other additional works the amount now is amounted to QR. 642M (70% variation in relation to Clause 51).
2. The contractor submitted variations mentioning over 20% so they have the right to insert new rates and omit the original BOQ and prepare new BOQ.
3. There are some unit in the BOQ presented as item, lots, the contractor change this & presented new unit in their new BOQ (e.g. original BOQ
Insulations
Fiberglass insulation 50mm thick, 24 kg/m3 with factory applied all service jacket vapor barrier including full coat of adhesive to all ducts sides, push pins, two layer of canvass wrapping, 2 coats of foster paint, plastic strap or wire bonded at 50 cm on center, angle corner reinforcements complete as shown in the drawings and in accordance with the specifcations.
For Air conditioning Ductwork
unit- lot
quantity- 1
amount - 1Million

New BOQ - same description
unit- m2
amount- 5Million


Questions:
1. if the total variatioin is 70%, meaning the new rate will be applicable in the 21st% e.g. 70%-20%=50%, therefore, the variations within the BOQ item will be treated thesame rate, the same unit while the new item not on the BOQ will be treated new item with new rate + profit?
2.Am i right with the approached i mentioned to Contractor as i mentioned in my question no.1?
3. The COntractor claimed variation by addition & omission with this approached,(e.g. Tender Drgw qty= 1000m3 of excavation work, priced BOQ qty= 3000m3 excavation work, redesigned drwg qty 2000m3, contractor is claiming additional 2000m3-1000m3= 1000m3)with the clause 55 i rejected the 1000m3 as variations instead i told them that no variations claim for this excavation since the qty although due to redesigned was already covered in the priced LS BOQ? but according to contractor as per Clause 6(2) Documents Mutually Explanatory:Except if and to the extent otherwise provided by the Contract the provisions of these Conditions of Contract shall prevail over those of any other document forming part of the Contract. The details shown on the drawings shall prevail over the provision of the specifications.  The details shown on the drawings and the provisions of the Specification shall prevail over the descriptions given in the Bills of Quantities.
Subject to the foregoing the several documents forming the Contract are to be taken as mutually explanatory of one another but in cases of ambiguities or discrepancies between the several documents or discrepancies within any of the several documents the same shall be explained and adjusted by the Engineer who shall thereupon issue to the Contractor instructions directing in what manner the work is to be carried out.  Provided always that if in the opinion of the engineer compliance with any such instructions shall involve the Contractor in any expense which by reason of any such ambiguity or discrepancy the Contractor did not and had reason not to anticipate the Engineer shall certify and the Employer shall pay such additional sum as may be reasonable to cover such expense.


My interpretation on this is: to prevail documents over another only mention on the description of items to follow or to use (e.g. kind & quality of materials, finishes etc others but not the qty.Am i correct me on this?

Thank u in advance. Hope u can clarify all this matter since i spoke to others giving different interpretation on this issue. My purpose is to weigh things out for me to come up with my urgent final & reliable decision (i dont mean to insult or offend other person i already consulted regarding this issue).

Regards,

Answer
Hi Reggie,

Kabayan! sensya n,nataglan ang reply.

Apology for the late reply since I am currently in  the mountain regions of Northern Mindanao and internet connection is really difficult due to bad weather and frequent power failure (paalis n dn dto soon!)

I donít have a copy of Qatar GCoC right now, I will base my answer on the information you provided and will be general in nature.

What makes you confuse with both clause 51 and  55?

Clause 51 deals with variation and the Engineerís authority to make any variation of the form quality and quantity of the Works whenever necessary or required. While clause 55 deals with the actual quantities of the Works to be executed by Contractor.

Should there any addition or omission, the Engineer shall have the power to fix rate should the rate provided in the contract is not reasonable or applicable, the Contractor should have give notice to the Engineer of his intention to claim extra as a result of any omission instructed by the Engineer and provide the Engineer his detailed particulars.

You need to check what is exactly written in the contract. Should there any ambiguities or discrepancies then it should be forwarded to the Engineer, and the Engineer shall make any necessary instruction to the Contractor.

I hope the above helps and good luck. 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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