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Construction Law/Issues not Raised before Bidding


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.

Clarification Requested

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 been awarded the Contract.
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, now is it alright to raise those issues after awarding the Contract?  
2. If the reply is “Yes”, please clarify the reasons.

Thank you.

Dear Jayan,

I am so sorry for the late response.

Please, the summary of answers to your questions bothers on "question of contractual arrangement".

Now, it is usually a practice that, before the signing of the contract, contract documents would have been forwarded to parties to peruse and compare with the Tender documents and any other relevant post tender clarification and negotiation (prior to award) but forming the basis of the award.

During the perusal, if there are any discrepancies that deviate from the Tender which forms the basis of the offer and acceptance (and negotiation), then, the discrepancies shall be pointed out at that time and it can either be corrected by doing necessary amendments to the Contract document. In a situation where the Contract documents can not be re-prepared to correct the anomaly, then, the contracting parties will jointly agree (whether by a party writing to the other party indicating such observation of discrepancies and the other party agreeing to such observation and being valid ground that would warrant adjustment under the contract. If this is done, then, such agreement or notice by one party and consented to, by the other becomes a ground for adjustment after the contract has been signed. If a party (the bidder) has "reasonably foreseen, observed" such irregularities and decided not keep quiet, it could mean two things contractually:
1. That the party (bidder) has agreed to waive his rights and agreed to execute all the parts of the works as contracted. or
2. That, the bidder at any time in future, having sufficient ground to proof that, the intention of the contract expressed at tender stage is clearly different to, and has been varied when in the contract documentation signed and hence constitute a ground for claim.
Because you did not indicate a specific type of issue or items or circumstance for the sceneraio of the question you are asking, i found it difficult to be specific with reference to the CoC.

Hope this is okay.


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Femi Alofe


I can answer all questions relating to the followings: 1. Contract Administration - variations, contract clauses interpretation, all post contract procedures, valuations and certificates questions, extension of time issues and prolongation cost matters. 2. Contract Practice - Any questions regarding forms of contract like JCT, FIDIC & other Bespoke forms. 3. Quantification, measurements and Estimating questions 4. Contracts and construction law questions and dispute resolutions problems. 5. All FIDIC Conditions of contracts


Out of my 24 years experience in construction industry, i have the following specific experience: 1. Contract Administration - 15 years in contract administration with over 10yrs in Managerial positions covering africa and the middleeast. 2. Contract Practice - 15 years experience with over 10yrs in Managerial and expert positions covering africa, north america and the middleeast. 3. All pre-contract procedures, Tendering, Quantification, measurements and Estimating questions - 20 years experience. 4. Contracts and construction law questions and dispute resolutions problems - 15 years experience with over 10yrs in Managerial and expert positions and 5 years expert witness and active practice in arbitration proceedings covering africa and the middleeast.

1. FAIQS - Fellow, Australian Institute of Quantity Surveyors, Australia 2. FRICS - Fellow, Royal Institution of Chartered Surveyors, UK 3. CCP - Certified Cost Professional AACEI, USA 4. PQS - CIQS, CANADA 5. ACIArb. - CIArb, UK 6. MNIQS - NIQS, NIGERIA 7. RQS - QSRBN, NIGERIA

1. AACEI RP on Estimating, 2010

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