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Construction Law/BoQ items and Payment

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Question
Dear Sir,

In our Contract which is based on 2010 FIDIC MDB Harmonized Conditions of Contract and a remeasurement Contract. It was observed that there is a discrepancy between the Bill of Quantities and Drawings/Technical Specifications. Drawings & Specifications shows that a RCC parapet wall is to be constructed on both sides of the bridge but relevant Bill of BoQ does not contain any such item instead a GI Pipe railing item is included which is not relevant to requisite work.

Preamble to BoQ does not explain this issue. However Sub-Clause 12.3 [Evaluation] states that if there is no such item of work in BoQ then the appropriate rate or price shall be the rate specified for similar work. It was noticed that the no similar work as per Sub-Clause b(iii) was available in the BoQ.

How this issue to be resolved/ remedied under the Contract?

I feel that Only Sub-Clause 12.3 (b) addressed this issue by evaluating a new rate of work. Conditions (ii) & (iii) are fulfilled but question is how the Engineer will issue Instruction for Variation in order to fulfill criteria (i) because this work is already specified in the Drawings & Specifications and these have priority over Bill of Quantities as per Sub-Clause 1.5 GCC.

Please advise.

Regards,

UMER SHABBIR

Answer
Thank you Umer for your question.

Firstly, let me advise that, whenever there is a discrepancies between the contract documents  like in this circumstance, between the contract drawings and the BOQ, the Contractor would always notify the Engineer  for clarification of which one he would uphold. It is after the clarification of the Engineer that you will now begin to consider and evaluate whether the Engineer determination as contained in the clarification constitute a change (variation) to the contract or not. If yes, then, you will proceed to how the cost evaluation would be ascertained in line with the Contract.
Secondly, whatever, the determination of the Engineer may be, if the Engineer is instructing to proceed  with the RCC parapet walls, then, to determine whether, this constitute a variation or not, this would depend on the type of the contract you are operating matters. Is it a lump sum contract? if yes, am afraid, the Contractor would not be entitled to any additional cost as it would not be treated as variation since the work concerned is mentioned in one of the contract documents - drawings particularly which is fundamentally the document that shows the scope of the works to be done.

Meanwhile, if your contract is not a lump sum type, then, it would necessarily constitute a variation and then, their would be additional cost implication to the Client. Determination of the amount to be paid of course can be determined through a fair evaluations process if there is no similar item in the BOQ. It therefore, follows that, you may need to work out the unit rate for the RCC parapet from the first principle (building up of rates) or if approved by the Engineer, get quotations for the works from reputable sub-contractors (minimum three) and carry out a due diligence assessment to recommending the most reasonable quote.

Hope this helps you?

Femi

Construction Law

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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

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