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Construction Law/Sub-clause 12.3 c of Fidic Red Book

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Question
Hi there.  I would just like to ask regarding Sub-clause 12.3 - Evaluation Item c - Applying new rates

"No specified rate or price is appropriate because the item of work is not of similar character, or is not executed under similar conditions, as any item in the Contract.

Could you please explain elaborately the meaning of "similar characted" and "not executed under similar condition".

Appreciate your expertise advice.

Thank you.

Answer
Dear Dwight Balmaceda,

This clause causes some irritation during implementation of a project; the Engineer says a new item is similar and thus contract rates apply, at least as a basis for the new rate; the Contractor says it is not similar and thus new (higher?) rates apply.  Neither party needs to be too rigid as the court will decide, after much expense on lawyers, to the chagrin of both parties.  I have not been able to find any legal references, so I'll try to give some examples as I understand similar.

Similar character - an in situ reinforced concrete wall 150 mm thick would be a similar character to a wall 300 mm thick, but might not be similar to a concrete block wall 200 mm thick.

Similar condition - an excavation for a mass concrete foundation base 500 mm by 500 mm by 500 mm deep excavated from the existing ground level might be a similar condition to an excavation for a reinforced concrete foundation 1 m by 1 m by 1m excavated 0.5 m below existing ground level, but not be similar to excavation for a raft foundation 50 m by 50 m by .25 m excavated 5 m below existing ground level.  

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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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