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Construction Law/Valuation of Variations - Clause 52.1 FIDIC

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Question
Dear Sir

Under a FIDIC contract clause 52.1 valuation of variations. It is stated in item (a) that BOQ rates will be used if in the opinion of the Engineer those rates are applicable.

Does this mean that if any BOQ rate appears to be incorrect or exaggerated, the Engineer may change when valuing a variation, even if the varied work is an additional quantity of the exact item in the contract? i.e. no change in the specification which may invite adjusting the rate.

Answer
Dear Moataz,

If those rates are applicable in 'the logic of the Contract', then they remain unchanged.  In other words, the rates can be varied if the nature or type of the work has been varied, but not otherwise.  If the original rates were for manual digging of holes and the excavation has increased so that the holes can be excavated using machines, then the rate can be changed.  The Engineer cannot change the rates just because they appear incorrect or exaggerated in his opinion.  Would you increase a rate if the Contractor appeared to have misplaced the decimal point and the rate was 10 times too small?  The ruling case on this subject is Henry Boot Construction Ltd v Alstom Combined Cycles Ltd [2000]CA BLR247.  There is a discussion on the case at http://www.atkinson-law.com/library/article.php?id=292  

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Peter M. Elliott

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First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol www.eotprotocol.com before submitting a question.

Experience

Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Organizations
Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

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B Sc(Hons) in Civil Engineering

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