Construction Law/Change the quality
QUESTION: Dear Sir,
We are the Main Contractor under L.S. Contract with private Employer
1- Contract: FIDIC 1987
2- Location: UAE
3- In the BOQ one floor finish item given as PC supply rate at 200 AED. However, our all in-rate against this item is 250 AED.
4- The Employer has selected different luxury samples of the same type of this item provided by nominated supplier with higher supply rates: 250, 400, 600, 750 AED.
5- Could you please advise whether this considered as change in quality since the description of the item in the contract is still same, but additives and/or colors added to the nature of the item in which increases the price. and can this change operated under sub clause 51.1 c (change the character or quality or kind of any such work).
6- Does a considerable difference in prices of two samples of same material can be construed as change in quality? and the contractor entitled to have an amount added to the contract sum.
ANSWER: Dear AR
Thanks for the question. I fail to understand how various samples of floor finishes having the same description can have such different rates. The other thing is why the main contractor did not decide rates with the nominated sub contractor before bidding. More over why the nominated sub contractor submitted samples much costlier than what the main contractor has mentioned in the bid.
Now that the samples were submitted by the contractor or nominated sub contractor, the Employer has correctly selected the best sample. In such cases the main Contractor should not blame the Employer but the sub contractor for submitting costlier samples. He should be paid the rates agreed with him at the time of bidding only. How can you ask the Employer for a revision in rate when you yuorself have submitted the sample which is according to the description mentioned in the contract document This suggestion may seem harsh on the sub contractor but it is his fault.
Hope this answers your question.
Abdul Majid Khan
---------- FOLLOW-UP ----------
QUESTION: Dear sir,
First of all, you agreed with me there is 300x300mm ceramic wall tiles in the market cost 50 AED/M2 while in the same showroom you may find 300x300mm ceramic wall tiles cost 200 AED/M2, and both we are name it technically: Ceramic.
As I mentioned in my question, we have PC rate items. Let's say; 300x600x13mm thick Polished/matt finished Porcelain homogeneous full bodied tile.
The supply rate given by the Employer/Engineer in the BOQ against this item: 200 AED/M2 excluding the other requirement (Installation, wastage, accessories, overhead & profit, and such)
The Contractor quoted value of 50 AED for the other requirement
The total cost of this item in the BOQ: 250 AED/M2
The Employer & the Engineer agreed with the nominated Subcontractor at the stage of construction to provide 300x600x13mm thick and 400x400x13mm thick Polished/matt finished Porcelain homogeneous full bodied tile with different colors and some kind of glazing chips added to the body of the tiles but with supply cost of 250, 400, 600, 750 AED
Now, our BOQ rate shall be change from 250 AED/M2 to the following:
50 AED (cost of our Installation, wastage, accessories, overhead & profit, and such) + 250 = 300 AED/M2
50 AED +400 = 450 AED/M2
50 AED +600 = 650 AED/M2
50 AED +750 = 800 AED/M2
Based on above, to go back to item (5) in my question: Could you please advise whether this considered as change in quality since the description of the item is still same, but additives and/or colors added to the nature of the item in which increases the price. and can this change operated under sub clause 51.1 c (change the character or quality or kind of any such work).
I hope you have understand my question and thank you in advance for your answer.
Sorry for a lot of delay. I understand that as the Employer had himself fixed the rate for the supply item, he is bound to place order for the quality of tile which is available in that price. However if the Employer or the Engineer/Architect selects a different costlier tile with the same description then they have to pay for it. You have quoted rates for fixing of tile only and you are responsible for it. The supply rate was fixed by the Employer so he is to be held responsible for it. If they want to change the quality, they have to revise the rates by issuing a change/ Variation order.
I hope this answers your question.
Abdul Majid Khan