Construction Law/Variation claims

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QUESTION: 60 mm concrete screed floor finish is specified in the BOQ under Floor finishes. But it is 90mm concrete screed according to the drawing. The item is rated in m2 in the BOQ and the contractor is now requesting a variation since there is change between BOQ and drawing. Contract is based on FIDIC & this is a measure and pay contract.

ANSWER: Dear Mohamed Afzal,

Thank you for this question.

From your narrative it appears that the BoQ is in error and the Contractor is entitled to a variation and, possibly, a re-rating of the item.

I assume that the concrete used in the screed is the same specification irrespective of the thickness. Assuming that it is not a reinforced screed then the concrete volume will increase by 50% (60mm thickness to 90mm thickness); however it is unlikely that the placing time and, therefore cost of labour and equipment, will increase by the same factor. As such, the revised rate for the contractor will NOT simply be 50% more than the original quoted rate.

Other factors might come into play. The thicker screed may need additional surface finishing. Further the thicker screed may need additional curing time and, therefore, a delay to subsequent trades may occur. I suggest that if there is a delay to be considered it is dealt with separately from the re-rating.


I hope that this assists you.

Kind regards,
John Dowse

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---------- FOLLOW-UP ----------

QUESTION: Thanks for the detailed explanation.Can you please explain the bellow doubts related to that same previous question.

Does always Drawings Supersedes the BOQ in measure and pay contracts (Considering the contract is governed by FIDIC)
Since 90mm screed is shown in the Drawing can’t we consider the contractor should have rate the BOQ item with the reference to the drawing.

Answer
Dear Mohamed Afzal,

Thank you for this further question.

I would expect that your contract sets out the order of priority between documents. If it does not that can be a source of major disagreement. However, in my experience it would be very unusual for the BoQ to rank higher than any document which specifies the Works.

As to the issue of pricing at tender time, why was the BoQ prepared on the basis of 60mm thickness? How much time did the Contractor have to review all the documents and to price? Was the Contractor provided with a complete sweet of drawings, or sufficient drawings to be able to identify the anomaly? All these questions and more will be relevant to make a determination.

If you are working on a FIDIC Red Book contract the Employer takes ownership of the documents and any errors therein. If an item was missing from the BoQ but shown on the drawings, would you expect the Contractor to add in an item or to price inclusively for the missing item? How then do you know whether all tenderers have done the same? By sub-clause 12.2 of the FIDIC Red Book the Contractor is entitled to have each item of the Permanent Works measured and valued, in accordance with the BoQ. Further the change in thickness is covered by the Variations clause 13.1, and sub-sections (a) - (c) in particular.

In my view based upon the information you have provided the Contractor would be entitled to additional payment for the increased thickness of the concrete topping.


I hope that this assists you.

Kind regards,
John Dowse


Follow me on Twitter: @CernoOrg
For my regular industry newsletter e-mail to info@cerno.org, stating SUBSCRIBE in the subject line

Training and consulting services are available, bespoke to companies and individuals.
John Dowse can be contacted by e-mail to info@cerno.org (When e-mailing, please include “AllExperts” in the subject line.)

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John Dowse

Expertise

Legal; contract interpretation; quantum; delay analysis. Practitioner in arbitration, adjudication and mediation.

Experience

Thirty-three (33) years experience in building and construction, at all levels both within contracting and consulting organisations. Practising arbitrator, adjudicator, and mediator. Faculty approved trainer for the Chartered Institute of Arbitrators. Lecturer on construction contract forms and dispute resolution practices.

Organizations
Chartered Institution of Civil Engineering Surveyors Chartered Institute of Arbitrators Institute of Directors Society of Construction Arbitrators

Publications
Various UK and International construction and legal publications.

Education/Credentials
LLB (Hons), Pg Dip (Legal Practice), MCInstCES MCIArb MIOD Barrister

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