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Construction Law/Clause 51.1 (b) Omission of Work - FIDIC 1988/1992

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Question
In a Construction Project, The Engineer has issued instructions to omit an item(C12/15) from work scope in persuant to Clause 51.1 (b), also propose an alternate option and asking for its rate submission.

The facts at the Contractors end are :-

1. There are 3 types of concrete being supplied in the Project by the contractor, C12/15, C30/37 & C 40/45

2. Contractor, while quotaing the rates at bidding stage had added all the concrete suplly's overheads in one item i.e. C12/15 with increased rate, hence rest of concrete items are quotated without any overhead.

3. In clarification meetings of bid acceptance stage, rate analysis for C12/15 and C30/37 were called by the employer, accordingly submitted by the contractor clearly depicting all the overheads in C12/15. Same rates were agreed/accepted and Project awarded to the Contractor.

4. Now in mid of the Project, to overcome the unusual increase in Project cost due to design/BOQ errors, the Employer has instructed Engineer to omit/delete the C12/15. Accordingly The Engineer has issued instruction to omit the C12/15 as per Clause 51.1 (b)and propose some alternate options to continue rest of construction(which itself is non-practical approach)

5.  Due to this omission, Contractor is facing a huge loss and the Project is becoming commercially unfeasible for the Contractor.

In this context, your kind support and guidance is requested to deal with the situation under FIDIC provisions to safe the Project.

Regards

Farooq

Answer
Dear Farooq,

Thank you for this question.

This is a difficult issue, especially as the Parties discussed, knew of and agreed the biased pricing at the time of awarding the Contract. I would like to know more of the exchange and how the discussions were recorded but in strict theory the Contractor is bound by the prices. The exception would be if it can shown that the omission is being made in a fraudulent manner which, I suggest, is a difficult task.

If you are happy to disclose more information I will look at the question again.



Kind regards,
John Dowse

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John Dowse

Expertise

Legal; contract interpretation; quantum; delay analysis. Practitioner in arbitration, adjudication and mediation.

Experience

Thirty-three (33) years experience in building and construction, at all levels both within contracting and consulting organisations. Practising arbitrator, adjudicator, and mediator. Faculty approved trainer for the Chartered Institute of Arbitrators. Lecturer on construction contract forms and dispute resolution practices.

Organizations
Chartered Institution of Civil Engineering Surveyors Chartered Institute of Arbitrators Institute of Directors Society of Construction Arbitrators

Publications
Various UK and International construction and legal publications.

Education/Credentials
LLB (Hons), Pg Dip (Legal Practice), MCInstCES MCIArb MIOD Barrister

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