Construction Law/provisional sum


Dear sir,
my question is after awarding the contract to particular contractor (under FIDIC 99 conditions of contract), whether the Engineer can issue an omission to delete provisional sum item and give that item to separate specialist? Is it a breach of contract?

Dear digashini,

I presume that you refer to the provisions of clause 13.1 d.  It could be a breach of contract, but there are no specified sanctions, except terminating the Contract.  Is it worth the hassle?  As the item is covered by a Provisional Sum, it could be argued that the item is not part of the Accepted Contract Sum, and thus the Contractor loses nothing if it is omitted.  You may wish to submit a claim under clause 12.4, but you would need to justify any losses or expense, which could be difficult.

It appears that you do not have a good relationship with the Engineer, which does you no good.  I suggest that you work improve cooperation to complete the Contract to time and budget, which is more profitable than legal actions.  

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Peter M. Elliott


First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol before submitting a question.


Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

B Sc(Hons) in Civil Engineering

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