Construction Law/Variation

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Question
QUESTION: Dear Engr. Liaqat H.
thank you very much for your expert opinion on the other subject.

I need your further guidelines regarding following;

1. Rebate or discount accepted at award of the Project, is either applicable in Variation or not.

2. Secondly, the rebate offered at the time of bid was over the total bid price including provisional sum. The Engineer calculates this percentage by excluding the provisional sum from the total contract value and obviously it goes on higher side. And apply the higher percentage as discount over the variation amount. Please guide.

Looking for your expert opinion.

best regards

sheraz

ANSWER: Dear sheraz,
Thanks for your comments.May i very briefly provide my response on two points as follows
1.I am of the view that rebate agreed at contract time is applicable on variations unless provided  for otherwise in negotiation meeting minutes and are a part of agreement.
2.The fidic conditions do not favour inclusion of PS in contact amount and if your contract is  based fidic,the Engineer is doing the right thing
Regards-liaqat hayat

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

QUESTION: Dear Engr. Liaqat Hayat
Thank you very much for your as usual quick reply and valuable expertise.

Your expertise is required in the following situation of variation.

At the time of tender, in Question and Answers qerry was raised by bidder that gabion walls are shown in drawings but there is no provision in BoQ, please clarify?. In Answer, it was replied that all gabion walls are replaced with retaining walls and referred to the revised drawings. In those revised drawings still the retaining wall was not clear and even in section gabion wall appears.

On issuance of DD drawings and FD drawings Gabion wall is issued to be executed. The Contractor raised notification of variation which is approved. A variation is raised later on where the Contractor omitted only the RCC wall and did not omitted foundation as it was part of raft foundation at the time of bid.

The Engineer during his calculations considered for omission other massive RCC section with RCC counter supports from DD drawings and FD drawings designed for area other than gabion wall, the variation grow negative due to the omission of such a heavy structure.

Your expertise is requested in the above situation either the Engineer shall consider for omission the only detail of retaining available at the time of tender or what he based on the massive section from DD,FD drawings is as per Contractual norms.

awaiting your expert opinion

best regards

Answer
Dear engr. sheraz,
while thanking you for coming back,i may say that the engineer can omit or make changes any time as long as this work is not executed by another entity i.e it should be genuine omisssion and not just to save money and secondly, the contractor is duly compensated for any extra financial repercussion or loss as a result.  Necessary contemporary record should also be available like notices required etc This is my general comment and you may  now review your situation and decide accordingly please.
Regards-liaqat hayat  

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Liaqat Hayat

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I can answer questions based on FIDIC 4 and FIDIC 1999 [design-build] with particular reference to time extension , price adjustment and disputes. I am in particular more inclined for response to points pertaining to how claims should be framed and put up in case of technical or other contractual shortcomings. Regarding procurement matters I have spent over 5 years as procurement specialist for highway authority and dealt with numerous claims and disputes in the capacity of "The Engineer" .

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