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Construction Law/Design and Build Works Responsibilty


Dear Sir,
We are working under FIDIC 1999.
However, the Client added certain works under the same contract to be on D&B basis. This amendment was issued after the bid was submitted but before signing the contract. The employer asked contractor to include DB works in the scope and price it.The contractor did so on the BOQ given by the client.The client gave the scope,its specifications, design liability schedule for the added works.During negotiations, prior to signing the contract, it was also agreed that any changes to the scope included after the original tender was submitted would be dealt with, as is the case usually, for quantities to be remeasured and BOQ rates would be applied for similar items. A contract price was agreed as contract sum including original tender sum plus the D&B scope as a Lump sum figure for new additional works.
The employer did not include certain works within the D&B  BOQ as envisaged under the documents of DB works.
The Contractor is now claiming that those works which were not included within the DB works should be paid as a variation and also asking for EOT on these works.One thing to note is that DB works BOQ did include a page where any missing item was to be priced.This was left blank.
How far is the contractor right in claiming this as a variation? particularly when the drawings, specs, design liability was clearly told to the contractor before signing the contract.
The Contractor did not include these missing works from D&B BOQ in its schedule of works and this program was approved by the engineer also.
Kindly advice.
Thanking you

Dear Abdul,

Design and Build contracts are always problematic, especially if there is a BoQ, who purpose is ill defined.  What is a Lump sum contract where everyone agrees to remeasure the works in the Lump Sum part after the works are done?  Obviously lots of room for misunderstandings and irritation.  Is there a written agreement included in the contract, which says that the works within the Lump Sum will be remeasured and paid at the same rates as the original bid?  If not, then the Contractor has no claim.  Under clause 8.3, the Engineer does not have the power to approve the Contractor's programme, merely to state within 21 days where it is not compliant with the Contract.  The Engineer has no power to relieve the Contractor of any of his obligations under the Contract.  

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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
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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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