Construction Law/BOQ unpriced item

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QUESTION: HEllo Femi,
I just want to ask your help to explain further this provisions in the LS contract in Note on Pricing as:   The Contractor shall price every item in the pricing sections of the Bills of Quantities.  Any item left unpriced shall be deemed to have been allowed for in the prices of other items.  No claim for payment in respect of unpriced items will be admitted.  Lump sums set against groups of items are not acceptable.

All unpriced item as deemed included in the LS contract, can i reject contractor claim for VO due to item with changes in quantity and some changes due to specifications they priced while unpriced in BOQ?

Thank you

ANSWER: Dear Rey,

Thanks for your question.

About LS contract and its NOP, except specifically mentioned otherwise in any of the contract provisions, the following rules apply:

1. The price of any items not priced is deemed to have been allowed for somewhere else within the lump sum.

2. If any variation instruction is issued (remember, all Instruction for variation would either change the works as shown on drawings and or specifications and NOT in BOQ). Some Site Instructions are issued referring to reference in BOQ, this practice is not a good one as the scope (quantum) of works to be done under a LS Contract is ONLY found as shown in the drawings and or indicated Specifications hence making BOQ to be only "a schedule of rates".

3. Except specifically mentioned otherwise in any of the contract provisions, the binding intent of the parties in a LS Contract is tied and limited to the scope of works shown in the drawings and specification, rates shown in the BOQ and the contract price stated in the form of tender.

4. If any instruction refer or applies to any items which are unpriced i.e. no rates to apply, there are two principles to evaluate / determine the rate based on the contract:
a. Carry out a breakdown analysis of the relevant contract BOQ sections or combination of items (if there is any) and determine the rates of the unpriced items (or the included items).
b. Carry out a market survey to determine the current market rates of the items and "factor off or upon" the rates, any inflation index using the variance in the index between the date of tender (as reference point) and the date of current market rate determined.

I hope this helps you.

Regards
Femi

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

QUESTION: Hello Femi,
In relation to your answer #1 all item not priced is deemed to have been allowed somewhere else in the LS. The burden of proof that this had been included somewhere else in the LS is on their shoulder and they cannot show any proof. What they did they omitted all the drainage system in the BOQ and they submit new drainage system with all the details and prices. I told them they cannot claim any unpriced item in the boq unless they will show the prices of the unpriced item before they claim for such item.without any proof the clainm were rejected. Am i right?

Answer
Dear Rey,

Yes, you are right. They need to demonstrate and show how much has been allowed for the "unpriced" items scope under the LS contract. The easiest way to do it as i said, is to measure the works as per the contract drawings (must be same with tender drawings) and price every item (with a focus of establishing the price at "tender date"). Whatever the amount of cost that these exercise produces forms "what to omit" and thereafter, the new scope / drawings can be measured and priced accordingly as addition. Finally after adjustment of the omission and the addition, you will get the cost impact of the V.O either in |Net addition or Net omission.

Guess, i am clear?

Femi

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Femi Alofe

Expertise

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

Experience

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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