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Construction Law/Priority of Documents

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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: Dear Umer,

Thank you for this question. Before I proceed to answer, can you confirm that this is not a homework/course work question?




I hope that this assists you.

Kind regards,
John Dowse

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

QUESTION: Dear Sir,

Sorry for the confusion. Actually I am working with Consultation firm in Pakistan. This issue recently come to known in one of our Contract. And it is to confirm that this is not a course work question............

Answer
Dear Umer,

Thank you for clarifying the position.


Assuming that the order of priority of documents is per GC sub-clause 1.5, the Specification takes precedence over the drawings and the drawings over the BoQ.

In the present case the Engineer should issue an instruction clarifying the position; indicating what is required (the RCC parapet walls). He should also instruct that the BoQ item is to be omitted and substituted with new items for the parapet walls which will be paid for on a reasonable cost basis in accordance with GCC sub-clause 12.3 (penultimate paragraph).

You should instruct the Contractor to keep daily records of the work for your agreement. You should ensure also that you keep your own records in the event that the Contractor does not keep some or there is argument over the resources claimed




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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