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Construction Law/CLAIM FOR VARIATIONS

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Question
Under my present contract, there are numerous omissions in the BoQ compared to the actual drawings. I would like some clarification if the contract allows me to claim for under-measured or missing items in the BoQ as the documents seem to say different theing. I have attached some exerts from the contract documents and the standard conditions of contract.

INSTRUCTIONS TO TENDERERS

8. QUANTITIES
The quantities provided in Boq are indicative and are not re-measurable except where mentioned a “provisional” and the tenderer has to check correctness…… The tender is based on tender drawings Scope of works, BoQ and specifications. No claims for additional amount due to any omission will be entertained by the employer.

APPENDIX TO FORM OF TENDER

2. variations of items not covered in BoQ  -  clause 13  - basic cost plus 15%.....
3.Quantities  -  clause 14  -  actual and correct quantities except wherever mentioned provisional
21. Fluctuations  - clause 38  -  contract is fixed price contract. No escalation in costs is allowed.

FORM OF AGREEMENT

2. the following documents shall be deemed to form and be read and construed as part of this agreement viz,
Tender
Conditions of particular application
Standard conditions of contract
Drawings
Specification
BoQ
Letter of acceptance


PARTICULAR CONDITIONS OF CONTRACT

At end of clause 4 insert……..priority of documents
1.   Contract agreement
2.   Letter of acceptance
3.   Form of tender
4.   Appendix to form of tender
5.   Particular conditions
6.   General conditions
7.   Drawings
8.   Specifications
9.   Priced BoQ
10.   Instructions to tenderers and appendices
11.   Other documents listed in appendix to tender
12.

  
Delete clause 4 ( Contract Bills) entirely and substitute
Except as provided for under clause 13 hereof the quantities are set out in BoQ are to be taken as the actual and correct quantities of the work to be executed by the contractor in fulfillment of his obligations under the contract.
Each unit cost…firm and will not be adjusted…
If the contractor determines that the items and/or quantities provided in the BoQ are inaccurate or that there are items in drawings or in specification which are not included in BoQ, he should reflect such variances or omissions of quantities etc with unit rates or prices for the particular item….. shall form part of the tendered lump sum total.
Items which have no quantities or prices and if left blank and not priced or quantified in detail will be considered as included in the contract value and no amount will be paid for omitted quantities and rates……

At the end of clause 38 insert
Contract shall be fixed price contract. No escalation in cost shall be allowed.

Any help is appreciated. Thank you?

Answer
Dear Chris,

Thank you for your question.

From your question, I can confidently let you know that the type of your contract is the one that is referred to as LUMP SUM CONTRACT. I will like to let you know also that, they have not made any mistake in the wording and nothing in your contract wording is conflicting.

1. Your contract says all quantities are indicative and that, you have the responsibility to be sure of the quantities when you were to during and as such,  if there were incorrect quantities which you knew (after your careful examination of the tender documents), by the provisions of that clause 8, appendix 3, clause 4 and clause 38 which h you have extracted, you were expected to raise such observation and create a qualification additional sum which the summary wouled be added to the tender bill priced summary of your tender. However  by ignorance or omission or commission, you were not able to detect any error or incorrect quantities, the would be assumed that, you have taken the risk and allowed for such cost or price somewhere else in you tender or contract sum.

The summary of the issues therefore is that any item under measured as you have said would be borne by you as the client would not be responsible and you must execute them as long as they are in the contract whether shown in the contract drawings or mentioned in the specification and other contract documents. The contractor will only be entitled for additional payment of there is a change / variation that entitles him to such.

Where items are conflicting as a result of discrepancies, the Engineer would take a decision and he can uphold whichever of the items so conflicting as long as both are part of the original scope forming the tender price / contract sum.

Hope this clears your doubts?

Thanks.

Femi

Construction Law

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Femi Alofe

Expertise

I can answer all questions relating to the followings: 1. Contract Administration - variations, contract clauses interpretation, all post contract procedures, valuations and certificates questions, extension of time issues and prolongation cost matters. 2. Contract Practice - Any questions regarding forms of contract like JCT, FIDIC & other Bespoke forms. 3. Quantification, measurements and Estimating questions 4. Contracts and construction law questions and dispute resolutions problems. 5. All FIDIC Conditions of contracts

Experience

Out of my 24 years experience in construction industry, i have the following specific experience: 1. Contract Administration - 15 years in contract administration with over 10yrs in Managerial positions covering africa and the middleeast. 2. Contract Practice - 15 years experience with over 10yrs in Managerial and expert positions covering africa, north america and the middleeast. 3. All pre-contract procedures, Tendering, Quantification, measurements and Estimating questions - 20 years experience. 4. Contracts and construction law questions and dispute resolutions problems - 15 years experience with over 10yrs in Managerial and expert positions and 5 years expert witness and active practice in arbitration proceedings covering africa and the middleeast.

Organizations
1. FAIQS - Fellow, Australian Institute of Quantity Surveyors, Australia 2. FRICS - Fellow, Royal Institution of Chartered Surveyors, UK 3. CCP - Certified Cost Professional AACEI, USA 4. PQS - CIQS, CANADA 5. ACIArb. - CIArb, UK 6. MNIQS - NIQS, NIGERIA 7. RQS - QSRBN, NIGERIA

Publications
1. AACEI RP on Estimating, 2010

Education/Credentials
1. B.Tech (QS) 2. RICS professional course, CEM - UK 3. MSc , UK NARIC 4. Professional Doctorate ( to commence 2016)

Past/Present Clients
1. Larsen & Toubro Ltd, Dubai UAE 2. Larsen & Toubro (oman) LLC 3. Archi + Web consortium, Abuja Nigeria 4. George Dike & Associates, Minna Nigeria 5. Public works Authority (Ashghal), Doha Qatar

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