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Construction Law/Concerns when having a design-build contract on re-measurable basis

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Question
QUESTION: Dear Sir

May you please list to me in detail as much as possible the concerns and the issues that we - as the Engineer - must take care of and be aware of when we handle a design-build contract on re-measurable basis.

Your urgent reply will be highly appreciated

Thank you

ANSWER: Dear Khaled,

I do not do homework questions but you may find the following websites useful:-

http://fidic.org/sites/default/files/saket_role_engineer_cairo_jan10.pdf
http://staff.fit.ac.cy/eng.ls/Skevi/ACEC438/The%20role%20of%20the%20Engineer-FID
http://www.tandfonline.com/doi/abs/10.1080/01446190701411216?journalCode=rcme20
http://www.cmguide.org/archives/2806
http://www.fenwickelliott.com/files/FIDIC.pdf

I would approach a design and build re-measureable contract with great care as there could be real problems with increases in quantities, and thus costs, due to the Contractor's design.  Most design and build contracts are tendered as a lump sum.


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

QUESTION: Dear Sir;

Thank you for your inputs and I am sorry if my question was like a homework. My further question in this weird position (D&B and re measurable on the same time) is as follows:
The tender was issued to the bidders including a preliminary drawings prepared by the Employer to show his requirements to the bidders along with a preliminary BOQ + the ordinary tender documents such as Contract Agreement, Instructions to tenderers, General conditions, Particular conditions and project specifications. The preliminary BOQ contained all the possible items with estimated quantities and the bidders were instructed to update the BOQ to a final one in the post award stage based on the final approved drawings later on. Now:

1- is the winner contractor entitled to add new items within his final BOQ and in this case they will be varied items with new price? Or we can tell him that he should have done this and added to the preliminary BOQ within the stage of studying the tender and raising his clarifications to the Employer (i.e before being awarded the job)?

2- This is a general question Sir; if in any project (let us say a project designed by the Employer), if the scope of work includes a certain work that should be implemented by the Contractor after being awarded the Contract whereas this work has not been incorporated in the BOQ. Now , if the scope of work prevails above the BOQ in the priority of documents, do we have the right to ask the contractor to do this work as included work (i.e. without paying him) or the contractor is entitled to a variation to do this work?

Sorry for repetitive inconvenience.

Answer
Dear Khaled,

1. It all depends what was said in the Tender Dossier.  If the Contractor has to update the BoQ post award and there were no restrictions on how he should update the BoQ, then you have to review and agree his proposed BoQ, with additional items and rates if appropriate.  
2. This contract is a remeasurable one, therefore any items, which were omitted from the original BoQ, should be instructed, and paid for, as a variation.  If the Contract was Lump Sum, then different rules could apply.  

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Peter M. Elliott

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First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol www.eotprotocol.com before submitting a question.

Experience

Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Organizations
Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

Education/Credentials
B Sc(Hons) in Civil Engineering

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