Construction Law/Conflicts in CESMM3 and Preamble to BOQ
General Conditions of Contract: FIDIC MDB June 2010.
Standard Method of Measurement: As quoted in Preamble to Bill of Quantities, “The Bills of Quantities have generally been prepared in accordance with the CESMM3 – Third Edition – 1991 with additions and amendments as detailed therein, to suit the local conditions. The work done shall be measured as depicted in CESMM3 unless otherwise provided.”
The Pipe Laying Contract governed and directed by the above 2 documents has already been awarded. The clarifications requested by me are as follows.
AS indicated above, most of the Sections in the CESMM have been amended by the clauses of Preamble to BOQ.
1.0 Few adverse clauses introduced are as follows.
1.1.“ In so far as any clause of the Preamble may conflict or be inconsistent with any provision of CESMM3, the Preamble shall always prevail.” – There are Preamble clauses which conflicts with unaltered CESSM clauses.
1.2.“Any Contractual or specified requirement not itemized in BOQ, shall deemed to be included in the rates of the other bill items.”
-This is directly against the clause 2.6 of Section 2 of CESMM which will be quoted below.
1.3.”The reference to the CESMM code is given only for easy reference. Therefore any conflict of CESMM code given in Bills of Quantities will not be recognized as a basis of any claim.”
- Can this be applied even with the unaltered CESMM clauses? If so what purpose, the CESMM was incorporated into this Contract?
2.0 One of the CESMM3 Clause Surviving Intact
Any amendment has not been effected to Section 2 – General Principles of CESMM3. The clause 2 .6 of which specifies that, “All work which is expressly required should be covered in the Bill of Quantities.”
Following unaltered clausesin Section 1, provide the definitions of “work, expressly required and Bill of Quantities.”
• Clause 1.5. The word ‘work’ includes,
Work to be carried out
Goods, materials and services to be supplied
Liabilities, obligations and risks to be undertaken by the Contractor under the Contract.
• Clause 1.6. The expression ‘expressly required’ means
Shown on the Drawings
Described in the Specification
Ordered by the Engineer pursuant to the Contract.
• Clause 1.7. ‘Bill of Quantities’ means
A list of items, giving brief identifying descriptions and estimated quantities of the work comprised in a Contract.
Contrary to above, lot of Items of Work has not been covered in the Bill of Quantities.
Any Bidder has not raised any question with respect to the above at the pre bid meeting.
What I feel is apart of the unfairness of the clauses introduced, it is Contractually alright. Therefore Contractual Claim can not be presented but only an Extra Contractual claim, to be resolved by the Courts, unless the Employer accepts the errors made by his side and arrange to alter the conditions with authority.
Kindly clarify at the earliest possible.
thanks for the question but i can provide a general response on the subject as follows as the questions raised are not clear to me
1. the contract needs to be studied carefully where CESMM3 and contract provisions are contradictory and in all such cases preamble to BOQ provisions to be preffered.
2.The contract to be seen for priority order given to BOQ in it