Construction Law/Negative Variation for unpriced BOQ Item
Type of Contract : Lump sum (Red Book 4 based) with BOQ as a schedule of rates.
Status : Project is completed and just start Defect liability period
In Boq there is UN-priced item showing blank in the rate column.
The client ignored executing this item and asking to re-estimate its value according to the market rate to deduct as a negative variation value and my company (contractor) insists on deducting its rate with zero amount based on its rate in BOQ where it's a contracted rate and client doesn't have any right to change the BOQ rates for any reason as contract said .
Who is right Client or Contractor?
Thanks for your question.
In general for a scenerio like this, my initial approach will be that there in no rate in BOQ because its yet not in the scope of work under the contract unless described otherwise. Its rates are yet to be agreed if finally decided to be executed at construction stage depending on funding availability or some other valid reason.In a re-measure contract a rate has to be derived anyway for a new rate.Here since the item is already mentioned without rate,it has to be derived keeping in view clause 52 of fidic 1987.It will be considered as additional work instructed and so is to be treated as a variation.Please let know if still it is unclear and can further discuss at my cell 92-333-5610760