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Construction Law/Interpretation of Clause/s

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Question
Dear Sir.

Conditions of Contract: FIDIC for Work of Civil Engineering Construction - Fourth Edition 1987
Reprinted 1988 with editorial Amendment only.
Reprinted 1992 further Amendments.

Clause : 5.2 on Priority of Documents.
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Question 1: I am requesting a full interpretation in this simple clause since there may be a lot to learn, though I saw it as simple.

In our Contract,in Particular Conditions - Part II of Conditions  of Contract pertaining to this clause,
Drawings are above Bill Of Quantities.
All from whom when I asked about resolution of ambiguity or discrepancy of any item in the above two documents,the reply was, the Engineer will always order to accept what is in the Drawings since it holds priority.

But I do not agree to this reply. My argument is the Engineer will order to accept what is the most relevant and if necessary with further adjustments irrespective of the priority of the document it is available.

But in such a case, I can not understand what is the use of prioritizing documents and
why it says in the clause,that "but in case of ambiguities and discrepancies the same shall be explained and adjusted by the Engineer who shall thereupon issue to the Contractor instructions thereon and in such event, unless otherwise provided in the Contract,the priority of the documents forming the Contract shall be as follows: ---------"

Please be good enough to provide me a clear, detailed reply.

Question 2:Is there any Book published by FIDIC on interpretation of clauses of their publications or any other globally acceptable book/s?
If so, please be good enough to provide details of its procurement.

Thank you sir.

Answer
Dear Perera,

Thank you for your kind question.

I will be simple as you have requested.

The clause you are referring to simply guides parties within the contract in administering change that may result from discrepancies or conflict in the information contained by contract documents particularly regarding the scope of works to be done.

I recalled that i have over the years tried to explain this in a simple manner to some of my fellow professionals and at the end of my explanation, all of agreed that, i was very right.

1. Firstly, let me be honest, you view is right. when there is a discrepancies or conflict between the contract documents, the Engineer is to review all the provisions in line with the contract requirements and issue instruction or clarification stating "which of the conflicting provisions (or work description or quantities or specifications) he would want to uphold to be executed by the Contractor.

2. Second thing to note is that, if the Engineer's instruction / clarification is now received. the priority of document now assist the contract administrators to decide / assess / appraise whether such Engineer's instruction / clarification constitutes a variation that may warrant any additional cost / time implications and entitlement to the Contractor.
3. The manner in which to go by this assessment and appraisal is by first knowing what was originally provided or intended under the contract and we start identifying this by going through the priority of documents and as such, if the Engineer's instruction or clarification on the discrepancies (i.e. the scope of work upheld for execution) is contained in the documents having higher priority, (i.e. listed above others); then, it would mean that such instruction / clarification does not amount to any variation but that the works so instructed / clarified formed part of the intended works under the contract.

4. In case the instructed / clarified scope differ entirely from any of the provision stated in any of the conflicting documents, it therefore mean that the works becomes a variation to be analysed based on the principle i mentioned in (3) above.

5. To your Question 2, i am aware of the guidance notes published by FIDIC to be used in conjunction with each of the contract forms but these may not address interpretation of clauses but they may describe how they can be used and applied under the contract. Sometimes, these description could give you a clue to the right interpretation. You can search for these online anyway.

Hope the above clarifies your doubts?

Thanks and kind regards.
Femi

Construction Law

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Femi Alofe

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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

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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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