Construction Law/Materials on Site

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Question
QUESTION: Dear Sir,

Our contract is based on FIDIC 1987 fourth edition, where it is stated that a percentage of invoice value of listed Materials on Site (MOS) to be certified by the Engineer.

The FIDIC 1999 goes beyond this and where it is elaborated that the Engineer could consider the contract value in his assessment.

Can we apply this principle in our contract where we can consider the contract BOQ quantity / amount and not the quantity stated in the invoice?

ANSWER: Hi Moataz
You signed up to FIDIC 1987 so those rules must apply.
Beware of trying to change to 1999 as the Engineer may accept and then use the new rules against you.
Best regards
Mike T.

---------- FOLLOW-UP ----------

QUESTION: Mike

Thanks a lot for your answer. If I can follow up with another question?

Is it fair to say that even FIDIC 87 allow some sort of mechanism to check and compare against the BOQ. I mean that the wording is "....for incorporation in the works but not incorporated in such works"

Can I assume that a condition is set for incorporation of such material in the works; and this would mean that I need to check the quantity to ensure that the contractor has not oversupplied and he may not use this material in the works?

Also the process of checking the quantity is already established because we deduct from the following payments the materials which have been incorporated into the works.

What is your opinion in this logic?

Answer
Hi Moataz
When I was a site QS I would physically walk round the site and count all the material stored on site in the stock yard.
If there was any over ordering it would be obvious that surplus stock would have to be removed but this never occurred.
It is unlikely that an efficient contractor would deliberately over order materials - the double transport alone would be too expensive.
And as you say - it would all be balanced out with the deduction of the previous payment.
I do recall one senior QS in the UK who just added the MoS to the end of the valuation after the adjustment which resulted in a massive cumulative overpayment.
It was only noticed when the interim payment exceeded the contract sum.
Best regards
Mike T.

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Mike Testro

Expertise

Anything related to extensions of time and delay analysis.

Experience

45 years in the Construction Industry 15 Years as a consultant delay analyst - I now hold myself to be expert in this field.

Organizations
Society of Construction Law Adjudication Society ex Planning Engineers Organisation

Publications
6 articles on the relevance of the India Contract Act 1872 and its relevance to modern construction in India. Waiting Publication

Education/Credentials
Associate Member of the Institue of Building

Past/Present Clients
Currently employed in India by Punj Lloyd as expert delay analyst. Engaged in ongoing arbitrations and EoT claims. Prior an Indepenent consultant in delay analysis.

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