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Construction Law/Attending to Work without a BOQ Item, but described in Detail in Contract Drawings.


Dear Sir,

Conditions of Contract: FIDIC for Work of Civil Engineering Construction - Fourth Edition 1987
Reprinted 1988 with editorial Amendment only.
Reprinted 1992 further Amendments.

Clause : 5.2 on Priority of Documents.

As per the Priority of Documents quoted in Conditions of Contract Part II -Particular Applications,Drawings are above BOQ.

According to Preamble to BOQ, if any item of work is described in Drawing, the cost of which should be incorporated in the Contract Sum, even in the absence of BOQ item for such work. In a present on-going Project, such case is available. Since a BOQ item was not available and it is not mentioned even in any other item, its cost has never been considered in Tendering and now the Contractor has to attend to it without any payment.

I suppose, no Contractual Claim can not be presented for this case but only Extra-Contractual or Ex-Gratia Claim.

Solution through Extra-Contractual Claim is time consuming and expensive and Ex-Gratia Claim will never be entertained.

Is there any way of getting redress for this case.
Will presenting the case to DAB (Dispute Adjudication Board) solve the problem.

Kindly explain.

Thank you.

Dear Basil,

Thanks for your question.

To be very honest with you, if the preamble to the BOQ said exactly what you have quoted, the Contractor does not have any redress because, the contract understood such circumstance that the Contractor has provided for it elsewhere in the Contract sum. I will not advise any contractor to waste his time and resources on going to DAB or other ADR since there is no valid contractual ground for entitlement.

Now, if the Contractor intend to appeal to the Engineer / Employer for Ex-Gratia claim, yes, he is free to do so and he must have other conditions or circumstances that could attract the Engineer / Employer's sympathy probably if he can demonstrate that he has suffered substantial loss on the contract when compared with the tender sum submitted by others during the tender. It must also be noted that, having suffered substantial loss is not enough, he must also be able to show how he has assisted or exhibited goodwill to the Employer on other number of claims for which the Client would normally have paid for but which were not, or for which any average experienced contractor would have claimed for and have a valid ground for the entitlement but which he had waived.

Hope this is ok?


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Femi Alofe


I can answer all questions relating to the followings: 1. Contract Administration - variations, contract clauses interpretation, all post contract procedures, valuations and certificates questions, extension of time issues and prolongation cost matters. 2. Contract Practice - Any questions regarding forms of contract like JCT, FIDIC & other Bespoke forms. 3. Quantification, measurements and Estimating questions 4. Contracts and construction law questions and dispute resolutions problems. 5. All FIDIC Conditions of contracts


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