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Construction Law/Ambiguity in BOQ and Drawing


QUESTION: am working  as a  consultant  Qs and our Contract is re-Measured Contract based on FIDIC 1999 (Red Book) .   In the  BOQ description floor tiling  described as ‘ Ceramic tiles’ but as per the drawing  its is ‘Porcelain’ tiles.  As per priority of Contract document Drawings has higher position.  Work is to be carried out as per the Drawings  and Contractor is claiming for price variation stating that their  price as per the BOQ description?   Please explain whether the Contractor is entitle for that ?

ANSWER: Dear Kumara,

Thank you for your question.

Based on provided information, it seems indeed, the Contractor is entitled to such Variation.

But prior deciding that, suggest you should also check the Technical Specifications, which probably prevail over both Drawings and BoQs.

See as well, what is the actual difference between "ceramic" and "porcelain".

Hope that helps.

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


Thank you very much for the reply.

My  concern is at the tendering stage tenderers were advised to always refer the Drawing and Specification prior to pricing and also the drawing has higher priority over the BOQ. Specification doesn't specify the tiles in this case. Please give your thoughts

Thank you,

Dear Kumara,

Thank you for coming back.

Tendering process is gone, now you're dealing with a signed Contract, based on an offer that has been checked and approved.

As long as those advices were nothing but advices, but no clear instructions, it is too late now to rely on them.

Moreover, in the signed Contract, you have a clear Sub-Clause, giving the order of precedence.

But again, what is the difference between "ceramic" and "porcelain". I am uncertain what "porcelain tiles" would be. Ask the Contractor to bring a written explanation, with details, showing the difference.

I am surprised you have no indication in the Technical Specifications. There should be a little something somewhere. Suggest you check again.

And finally, why are you not issuing an Instruction/ Variation, as the Engineer, to omit/ replace "porcelain" with "ceramic"?

With that, you harmonise the Drawings with the BoQs and shut up the Contractor.

Think of that.

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Over 20 years of experience in the field of design, works supervision, construction, management of aid funds and technical assistance for various types of contracts implementation, including severe conflictual contractual situations leading to Claims and disputes. Claims/ Contract management, Disputes adjudication, Arbitration.

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