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Construction Law/Builder's works-Claim

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Question
Dear Ms. Alina,

The running project is under Fidic Red Book.

The Contractors are claiming the drilling cost of the steel rebar over the existing RCC slabs for the concrete up stands (Additional work). The Consultants refused to approve the Contractor's claim and stated that this drilling activity is part of the Builder's works. Hence the claim for drilling is not approved by the Consultants.

As we are the Client's representatives looking your guidance to clear this issues contractually as well as acceptable by both end.

Thanks and regards,

Joseph A George

Answer
Dear George,
There is few information on this subject in your question, so I don't have the clear picture of it.
Still, I would advise you to take into consideration that FIDIC Red Book is a remeasurement contract and the actual quantities done are paid, at the unit price included in the BoQ.
If there are such items as drilling in the BoQ from the Tender or from the instruction to vary or Variation Order where the works involving drilling are included (I understand that it is about additional works), then the unit prices from that BoQ should be used and the drilling should be paid accordingly.
If there is a variation instructed, but no unit price for drilling is agreed yet, new price can be made according to the Sub-clause 12.3.
If there is a BoQ already agreed for these works, but drilling is not included as a separate item, then the drilling is considered as an activity that was taken into consideration as part of the items included in the agreed BoQ and the cost of the drilling is covered by or included in the other items. See, in this view, the principle in the Sub-clause 4.11 [Sufficiency of the Accepted Contract Amount]:
"The Contractor shall be deemed to:
(a) have satisfied himself as to the correctness and sufficiency of the Accepted
Contract Amount, and
(b) have based the Accepted Contract Amount on the data, interpretations, necessary information, inspections, examinations and satisfaction as to all relevant matters referred to in Sub-Clause 4.10 [Site Data].
Unless otherwise stated in the Contract, the Accepted Contract Amount covers all the Contractor's obligations under the Contract (including those under Provisional Sums, if any) and all things necessary for the proper execution and completion of the Works and the remedying of any defects."
In case it was discovered after agreeing the amount or the BoQ for the additional works that drilling is needed, then it is possible to agree a unit price for drilling and include this activity as a separate item in the BoQ, especially if the necessity of drilling resulted from unforeseeable circumstances and/or the Parties could not know, at the time when it was decided to do these (additional) works, that drilling was needed.
Hope that you will find the answer to your situation between all the hypothesis/cases above and it will help you to solve the situation occurred in your contract.
Best regards,
Alina

Construction Law

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Alina Valentina Oprea

Expertise

I can answer to questions regarding FIDIC 1999 contracts, including practical use of these conditions of contract, as well as to questions regarding dispute boards, both from theoretical and practical point of view. I cannot answer to questions related to other kind of contracts or to procurement process, except to some (limited) extent.

Experience

Implementation of works contracts (FIDIC 1999) financed by different financial institutions, including European Union; claims and disputes; dispute boards See more on www.alinaoprea.com

Organizations
Dispute Resolution Board Foundation

Publications
see http://alinaoprea.com/publications/ ; DRBF Forum Newsletter; Drumuri si Poduri; Revista Constructiilor; SIDiR Newsletter

Education/Credentials
Graduated the University of Civil Engineering Bucharest, Faculty of Railways, Roads and Bridges (1985-1990); Trained under Mr. Gwyn Owen’s pupilage program for arbitrators/adjudicators under FIDIC mentoring program (2006 – 2007)

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