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Construction Law/Claiming for Work Not Done


In the BOQ and drawings, subgrade material is to be provided below footings at a certain soil bearing capacity. However, during excavation, hard rock was immediately encountered and it was decided to let the footings rest on it. There were no soil investigation conducted before the contract was awarded. When his first progress billing was submitted, he claimed for the subgrade item of work. Is he entitled for such claim? Please advise.

Dear Seg,

You did not indicate what kind of Conditions of Contract you are using, nor what are they providing in respect of payment, hence, I can only give an indicative answer.

As you mentioned "BoQ", I am tempted to believe the Contract is based on re-measurable quantities, i.e. it is paid only what is executed.

In that case, indeed, Contractor is not entitled to any payment related to that subgrade layer.

If by the contrary, the Contract is based on lump sum, the Contractor is to be paid the full amount, regardless if certain works are less that provided in the original drawings.

Likewise, to a certain extent, if  Contractor has to execute something additional, he is not entitled to any additional payment, above the agreed lump sum.

Hope that will give you the answer and please, next time, do provide all necessary details, so I can help you.

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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.


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