Construction Law/Change in quality


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.

Dear Ar

Lump sum projects have so many problems for the Contractor, because the Employer does not specify how variations are to be paid.  Also often the function of the BoQ is undefined.  

I presume that your rate was based on a detailed specification of the item.  I would say that Clause 51.1 c gives the engineer the power to change the specification. Thus clause 52.1 applies.  If the Employer or the Engineer declines to adjust the rates, there is the concept of unfair enrichment in Sharia Law.  I think that you have to make a value judgement as to whether or not to challenge this item or to wait for a better case and then come back to this one.  

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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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