Construction Law/Clarifications not Requested at the Pre-bid Meeting
QUESTION: Dear Sir,
I am grateful, if clarification for the following is sent at the earliest possible.
Contract : Supply and Laying of DI Pipes.
General Conditions of Contract: FIDIC MDB June 2010.
The following clauses are available in the Instructions to Bidders in the above Contract.
1. The Bidder is invited to attend to Pre-bid Meeting and to get the available issues clarified and to get the answers for the questions available at that stage.
2. The Bidder is requested to submit any questions in writing to reach the Employer not later than one week before the meeting.
3. Nonattendance at the Pre-bid Meeting will not be a cause for disqualification of a Bidder.
The successful Bidder has now received the Letter of Acceptance but Contract Agreement not yet signed.
He has attended the Pre-bid Meeting but has not asked any question either at the Pre-bid Meeting or not submitted any question in writing as specified at clause 2 above.
But on studying the Bidding and Contract Documents it is apparent that, there are lot of shortcomings which may lead to construction claims.
1.My problem is, whether the Contractor is Contractually alright to raise those issues after signing the Contract?
2. If the answer to 1 above is "NO", is there any way of justifying to enable raising those issues and to get clarifications?
2. If the reply is “Yes”, please clarify the reasons.
ANSWER: Dear Shantha
Thanks for your very interesting question.
Before I respond to your question in detail please clarify the following:
1. Why the Bidder didn't ask any questions in the pre-bid meeting and thereafter in writing?
2. Are the discrepancies ONLY exit between Tender Document and LOA/Contract Documents?
3. "Shortcomings" -- Please list some of those so that I can better understand your position.
In short my understanding is that the discrepancies are between "Tender Documents" and "Construction Documents". This has no relation with the fact that the Bidder didn't ask any questions during Tendering Phase. "Not asking any questions" do not give the Engineer or the Employer any right to change "Tender Documents" when the same are presented as "Contract Documents"; without adequate compensation for the varied items.
However, if the Bidder hasn't studied the bid very well and his prices are based on his poor understanding of tender documents; then there are little chances to convert any discrepancies into legitimate claims.
Hope this helps.
---------- FOLLOW-UP ----------
QUESTION: Thank you very much for your respond. Clarifications to your queries are as follows.
1.I joined the Company only recently, after receiving the Letter of Acceptance.
I think any Tenderer has not studied the Tender documents adequately before
Tendering and pricing the BOQ.
2.Discrepancies exit mainly between Preamble to BOQ and BOQ and Specifications
and also between Drawings and BOQ.
i. As specified in the Preamble to BOQ, the Standard Method of Measurement
applicable is CESMM3 - Third Edition - 1991, according to clause 2.6 of
which,"All work which is expressly required should be covered in the Bill of
Clauses 1.5, 1.6 and 1.7, define the terms "work", "Expressly required" and
"Bill of Quantities."
The BOQ has not been prepared (by the Employer) in accordance with the
above.Lot of "Work, expressly required" are missed in the BOQ and by
addition of the clause, "Any contractual or specified requirement not
itemized in BOQ, shall deemed to be included in the rates of the other bill
items", it has been tried to safe guard the Employer.
Tender pricing has been done,
i. Without pointing out of this to the Employer and
ii.Disregarding the cost of missing BOQ items. Therefore the Tender is
heavily under estimated.
These are easily foreseen errors by an Experienced Contractor.
But can't we get those missing costs as Variations since,
i. Attendance to pre-bid meeting was not essential
ii.The Employer has not prepared the BOQ as per the rules quoted by him
iii.It is apparent that he has tried to cover himself from his own errors
and tried to pass them to the Tenderer
iv.The Tenderer's responsibility is to price only the items available in the
v. He will study the Specifications and Drawings only to grasp the details
of the available BOQ items to see how best to price them
vi. His business is not to look for missing BOQ items
vii. He has no authority to amend or add new BOQ items as per the other
Thanks for sending further details of your scenario. Now the issues are much clear for me to respond.
Having gone through the details; please find my views as below:
1. Although the attendance to pre-bid meetings was not essential yet an Experienced Contractor must have picked the obvious items mentioned elsewhere BUT not in the BoQ.
2. The Employer has "safeguarded" himself by including a clause.....but we can only sympathies with the Contractor but can not re-imburse any related VOs due to the fact that the Tenderer(s) were well aware of this overriding clause during Tender (Please correct me if I am wrong)
3. I agree with you that the Contractor's business is not to cross check of trace missing items (unless the Contract is not Lump Sum); but due to aforementioned clause the tenderer(s) will be forced to do so....
These are my initial thoughts. The Contractor need to put-up a Claim to prove that the Tender Documents were insufficient to inform tenderer(s) that they must revisit the BoQ items and add/omit if some items were missed out. I understand that your Contract is remeasured; therefore The special clause added by the Employer may be argued further to be proven as null and void.
In case any professional detailed advise is required by your organisation to put-up a Claim; you may contact drop an email to me.