Construction Law/Measurement-Payment


QUESTION: Dear Florin,

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.

Best regards,


ANSWER: Dear Alemu,

Good to hear again from you and glad if I could help.

In respect of your new question. I believe that both tender drawings and Specifications are Contract documents, except the Contract should provide for an order of precedence of documents.

I suspect the Specifications are having a higher precedence, i.e. prevail over drawings - you need to check the Contract for that.

Based on provided information:

If the Specifications prevail: you should have made 14 rooms of 16 sqm, each. If you made them larger, unless specifically instructed to do so, you are not to receive any compensation.

If Drawings prevail, you should have made 10 rooms of 36.888 sqm, each. If Engineer instructed you otherwise, you are indeed to be paid for the difference.

Hope that will help, please check what the Contract says.

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

QUESTION: As usual, I am deeply indebted to your prompt reply.

I think it would be more clear if I may inform you that the Tender drawings are not part of the Contract. However, the Contractor simply prepared the working drawings based on the tender drawings and got same approved by the Engineer only increasing the numbers as specified [14 nos of rooms with 36.8m2 area each]. Accordingly, he executed the works and based on which he is claiming payment although the Contract Specifications stipulate 14 nos of rooms with 16m2 area each.

The most important question may be: would the Engineer’s approval and the Contractor’s ACTUAL execution of the works accordingly entitle the Contractor to payment based on what he ACTUALLY EXECUTED although the Specifications requirement as above?

Dear Alemu,

Thank you for coming back.

That is quite weird and I would suggest you thoroughly check again if that is indeed correct. Tender Drawings should definitely be part of the Contract.

But if you are correct, if you were not specifically instructed to make the rooms larger, you are not to be paid.

Whatever work, beyond Contract requirements, executed without specific instruction, remains entirely at Contractor's cost.

Which is in fact fair. For example, if a contractor builds a motorway instead of a road, a skyscraper, instead of a house, would the Employer obliged to pay? I exaggerate, but you might see the idea.

And Engineer's approval does not relieve Contractor of his responsibilities.

By the way, you did not indicate which  Conditions of Contract you're using, I assume is FIDIC Red Book. Probably '87, or '92.

Hope that clarifies the matter. But please check again re Tender Drawings ...

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Questions related to Civil Engineering Contracts, using FIDIC or other Conditions of Contract, concerning Procurement procedures and documents (pre-qualification, tendering and contracting) and Services/ Works Contracts implementation matters including Determinations, Payments, Time Extensions, VOs, Claims/Disputes. Additionally, questions related to dealing with International Financing Institutions. Can also answer questions in Romanian. Can not answer improperly formulated questions.


Over 20 years of experience in the field of design, works supervision, construction, management of aid funds and technical assistance for various types of contracts implementation, including severe conflictual contractual situations leading to Claims and disputes. Claims/ Contract management, Disputes adjudication, Arbitration.

Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers Former member of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List and of DRBF Chapter for Eastern Europe Former member of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List Member of “” volunteers pool Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States

- Graduate in 1994 the Construction Institute - Graduate of several FIDIC,Procurement and other courses - Graduate of first Disputes Board Members Mentoring Scheme ( - FIDIC Accredited Adjudicator

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