You are here:

Construction Law/conflit about employer's instruction for change in caracteristics and improvment of works.

Advertisement


Question
Dear sir,
Could you please answer my query?
I’ m the Resident Engineer for a Road project.
The contract is the FIDIC fourth edition 1987 reprinted 1988 and 1992.
In the basic design, the wearing for the road is:
-   Asphalt concrete hot mix (thickness 5 cm) for the carriage way (7 meter width). Unit  price A
-    Single seal coat for shoulders (1.50 meter width for both sides). Unit price B.
Total width of the road is 10 meter.
The contract was established according to the above data.
At the start of the project, the Employer requested an asphalt concrete hot mix for the whole road width ‘’carriage way and shoulders’’ ( 10 meter width).  
According to clause 52.1  and in my opinion, I don’t see any prejudice on the  works of this task , the fact we use the   material   asphalt concrete hot mix for which the unit price is price A and the works for carriage way and shoulders are done in one go.
Our proposal was to pay the works with the contract price  A , and in case, the whole quantity exceeds by more than 30% the contract quantity the contractor has the right to claim a new price for the quantities over 130%.( according to the particular condition added to  clause 52.2 of the FIDIC-  This particular condition is ‘’ provided further that no change in the rate or price for any item contained in the contract shall be considered unless such item accounts for an amount more than  two (2) percent of the contract price and the actual quantity of work executed under this item exceeds or falls short of the quantity set out in the bills of approximate quantities by more than 30 percent’’.
The contractor refuses the employer instruction and stops asphalt works and claims a new price for shoulders. The contractor arguments his decision, saying the contract price A is too low.
According to this , could you please advice what could be the required decision?.

Best regards

Answer
Dear Mohammed,

Thanks for your question.

The contractor CAN ONLY have valid contractual ground to request for a new rate / price for valuation of the variation you have described if the two conditions cited are met i.e:
1. Such item accounts for an amount more than two (2) percent of the contract price and
2. Actual quantity of work executed under this item exceeds of fall short of the quantity set out in the bills of quantities (original contract quantity for the item)

You will therefore need to carry out an analysis of the rate, price, amount and quantities of the item concerned to ascertain if these conditions are met and if they are, ofcourse, the Contractor will be entitled to the new rate / price as may be negotiated and agreed.

Hope this is clear?

Thanks.

Femi

Construction Law

All Answers


Answers by Expert:


Ask Experts

Volunteer


Femi Alofe

Expertise

I can answer all questions relating to the followings: 1. Contract Administration - variations, contract clauses interpretation, all post contract procedures, valuations and certificates questions, extension of time issues and prolongation cost matters. 2. Contract Practice - Any questions regarding forms of contract like JCT, FIDIC & other Bespoke forms. 3. Quantification, measurements and Estimating questions 4. Contracts and construction law questions and dispute resolutions problems. 5. All FIDIC Conditions of contracts

Experience

Out of my 24 years experience in construction industry, i have the following specific experience: 1. Contract Administration - 15 years in contract administration with over 10yrs in Managerial positions covering africa and the middleeast. 2. Contract Practice - 15 years experience with over 10yrs in Managerial and expert positions covering africa, north america and the middleeast. 3. All pre-contract procedures, Tendering, Quantification, measurements and Estimating questions - 20 years experience. 4. Contracts and construction law questions and dispute resolutions problems - 15 years experience with over 10yrs in Managerial and expert positions and 5 years expert witness and active practice in arbitration proceedings covering africa and the middleeast.

Organizations
1. FAIQS - Fellow, Australian Institute of Quantity Surveyors, Australia 2. FRICS - Fellow, Royal Institution of Chartered Surveyors, UK 3. CCP - Certified Cost Professional AACEI, USA 4. PQS - CIQS, CANADA 5. ACIArb. - CIArb, UK 6. MNIQS - NIQS, NIGERIA 7. RQS - QSRBN, NIGERIA

Publications
1. AACEI RP on Estimating, 2010

Education/Credentials
1. B.Tech (QS) 2. RICS professional course, CEM - UK 3. MSc , UK NARIC 4. Professional Doctorate ( to commence 2016)

Past/Present Clients
1. Larsen & Toubro Ltd, Dubai UAE 2. Larsen & Toubro (oman) LLC 3. Archi + Web consortium, Abuja Nigeria 4. George Dike & Associates, Minna Nigeria 5. Public works Authority (Ashghal), Doha Qatar

©2016 About.com. All rights reserved.