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



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:-

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.

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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.

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


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 before submitting a question.


Value . . .
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