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Construction Law/Claiming for Work Not Done

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Question
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.

Answer
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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Florin NICULESCU

Expertise

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.

Experience

Over 20 years of experience in the field of design, works supervision, construction, management of aid funds and technical assistance for various types of contracts implementation, including severe conflictual contractual situations leading to Claims and disputes. Claims/ Contract management, Disputes adjudication, Arbitration.

Organizations
Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers www.aric.org Former member of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List www.drb.org and of DRBF Chapter for Eastern Europe http://dabdrb.googlepages.com Former member of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List http://www.sidir.pl/sidir/index.php?action=czlonkowie&a2=r Member of “AllExperts.com” volunteers pool http://www.allexperts.com/user.cgi?m=4&expID=85358&catID=914 Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States www.constructiondisputes-cdrs.com

Education/Credentials
- Graduate in 1994 the Construction Institute - Graduate of several FIDIC,Procurement and other courses - Graduate of first Disputes Board Members Mentoring Scheme (http://www1.fidic.org/resources/adjudicators/pupilage.html) - FIDIC Accredited Adjudicator

Past/Present Clients
- Several State organisations/Ministries , such as Ministry of Transport, National Admistration of Roads, Ministry of Regional Development (former Ministry of European Integration), Public Works and Housing, Central Contracting and Financing Unit in Romania and also in Turkey, Croatia and Macedonia - Numerous Western based private consultancy companies - full CV and other relevant information available at www.abinitio.ro

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