Construction Law/Rate only Item
I am the main contractor for a pilling job for which FIDIC MDB 2005 is applicable.
There was an Item in the BOQ at the Tender for pile hacking(breaking pile termination point to reach sound concrete which is normal in the piling contract.).Once we have given our bid Employer has taken off the quantity of this item but keeps the item as “rate only” under same item the BOQ stating that we can use it if it is required. This leads Bid price reduction. Later this item actually was required and they have paid through actual quantities and using rate in the BOQ as “rate only”.
a. Can we ask EOT for this? Is it necessary to the Contractor to consider the time impact for the item given as “rate only” at his Bidding price?
b. Project is actually delayed due to this pile hacking Item. What are the financial considerations as a contractor we may able to address and under what clauses those can be referred.
When you submit your offer, I presume that you have considered time including breaking of pile heads. Did the Employer provide a new completion time when they remove quantity of this item or not ?
Under Clause 8.3, you should have submitted a detailed programme of Works within 28 days after receiving notice for Commencement of Works, did you consider and indicate subject item in your programme as individual item or not ?
Most probably, your Particular Conditions are more specific about this item than General Conditions and this rate only item has to be considered under Provisional Sums. The Clause 4.11, stipulates that" 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..."
Otherwise, the reasons of Time Extension provided in Clause 8.4 and you need to justify either this item is a Variation to Contract or there are valid reasons for time extension.
To ask extension of time, you need to justify that this item was not included in Contractor's Time Schedule and his Tender Submission and it has a time impact on overall time schedule.
The answers to my above questions are lead to say Yes or No to your request to be more precise.