Hope you are doing fine.
You have really been so helpful to me expertly replying to my questions.
My question today is as follows:
Discrepancies have been noted among the Tender drawings, contract agreement [the Specifications] and the Approved drawings in relation to the construction of Engineer’s accommodations.
As per Tender Drawing: The number of rooms shown was 10, with each room area 36.888 Sq. m.
As per the Contract Agreement [the Specifications]: The number of rooms shown was 14, with each room area 16 Sq. m.
As per the Approved drawing by the Engineer: Working Drawing was prepared based on the Tender drawing, But the number of rooms considered was as per the Contract agreement i.e.; 14 rooms, genuinely failing to notice the area mentioned in Contract agreement 16 Sq. m for each room.
The area for each room as per approved drawing was matching with the area in tender drawing.
Though, the rooms have been increased to 14 from 10, the area for each room has not been restricted to 16 Sq. m as per the contract agreement , thus followed the tender drawing area.
Now, the difference in area executed by contractor as compared to the contract [Specification] was 291.16 Sq. M [14x36.888 less 14x16], which is being claimed by the contractor.
Although there was a difference in the area from the Contract [Specifications], the work was actually executed based on the drawings the Engineer approved.
Can the Contractor claim for the difference [that is payment to be made based on the approved drawings as constructed]?
As usual, I am request for your directions in this regard.
Thank you for your question.
From your question, it is obvious that the Contract drawings which was used for the execution of the Engineer's accommodation differ from the tender drawings which formed the basis of the financial offer. One could reasonably establish that the reason for this variance is as a result of discrepancies and inconsistencies in the drawings and specification for the works. It therefore follows that, the procedure for clarification of discrepancies would have been duly followed by the Contractor. i.e. requesting for clarification from the Engineer in form of RFI or RFC prior to execution. Now, with all these being said, if RFI or RFC was not raised by the Contractor but working drawings were prepared based on any of the information (whether tender drawings or specification or a mixture of information from both); and if the Engineer approved such working drawings, it would therefore mean that; the approval of such working drawings is a clarification required to resolve the discrepancies and as such, the work so executed in line with the working drawings (i.e. 14 x 36.888 sq.m.) becomes a variation to the original contract scope as intended in the tender drawings or specification (i.e. 10 x 36.888 sq.m. or 14 x 16 sq.m.) whichever the Engineer upheld as forming the basis of the financial offer since both were included in the tender (inclusive of tender drawings and specification). The challenge here is to now ascertain which of the dimensions formed the basis of the financial offer indicated in the form of tender. The Contractor will therefore need to proof and demonstrate this beyond any doubt. Any of the dimensions which is then, convincingly proved would be upheld and upon such, the Contractor therefore would be eligible for any additional cost and or time implication arising from such variation. This principle is therefore applicable to be used, if the contract is NOT a LUMP SUM contract. How would the contract prove this? by analyzing the cost or price he has included in his tender and or final offer price for such item of work (Engineer's accommodation)
If the contract is a LUMP SUM CONTRACT, the original contract scope would therefore mean, any scope mentioned in any or all of the tender specification and or tender drawings. If it is mentioned in one of the tender documents (inclusive of tender drawings and specification), it is deemed to have been mentioned in all as contract requirements. Therefore, the original scope would therefore be either (14 x 16 sq.m). or (10 x 36.888)sq. m. (whichever the Engineer upheld). This solely at the Engineer's discretion. The Contractor would not have the opportunity to prove whichever he considered at tender stage. The LUMP SUM CONTRACT understood this circumstance, that the Contractor has duly considered both or any of the dimensions in his tender or and offer price.
Hope this clears your doubts?