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Construction Law/Discrepency in BoQ & Specifications

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Question
Dear Madam,

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
Dear Sir,
The Contract is made and should be read in the way it can work, not in the way it cannot work. This is the principle of the laws, too, by the way.
So, you have in your Contract (with all the documents included), a RCC parapet to be built, and no rate in the BoQ for it. This is an atypical situation - it is a mistake/error of the Contracting Authority/Employer, who did not put a specific item in the BoQ for which the Bidders put their prices. Therefore, the Offers did not include money for the RCC parapet and, consequently, the Accepted Contract Amount doe not include the price of the RCC parapet. From this point of view, the RCC parapet could be considered a variation.
So, the Contractor is to build the Works according to the Specifications and drawings, the Engineer is to measure the Works as per 12.1 and 12.2 and settle the price as per the principles of 12.3: each new rate or price shall be derived from any relevant rates or prices in the Contract, and if no rates or prices are relevant for the derivation of a new rate or price, it shall be derived from the reasonable Cost of executing the work, together with profit, taking account of any other relevant matters.
Hope it helps.
Best regards,
Alina

Construction Law

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Alina Valentina Oprea

Expertise

I can answer to questions regarding FIDIC 1999 contracts, including practical use of these conditions of contract, as well as to questions regarding dispute boards, both from theoretical and practical point of view. I cannot answer to questions related to other kind of contracts or to procurement process, except to some (limited) extent.

Experience

Implementation of works contracts (FIDIC 1999) financed by different financial institutions, including European Union; claims and disputes; dispute boards See more on www.alinaoprea.com

Organizations
Dispute Resolution Board Foundation

Publications
see http://alinaoprea.com/publications/ ; DRBF Forum Newsletter; Drumuri si Poduri; Revista Constructiilor; SIDiR Newsletter

Education/Credentials
Graduated the University of Civil Engineering Bucharest, Faculty of Railways, Roads and Bridges (1985-1990); Trained under Mr. Gwyn Owen’s pupilage program for arbitrators/adjudicators under FIDIC mentoring program (2006 – 2007)

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