Construction Law/Omissions and variations
QUESTION: We have Lump sum and fixed price contract based on FIDIC 1999. Please advise on the following, referring to the relevant clauses from FIDIC 1999 for the same.
1) Client/Engineer has omitted/deleted the Skylight work. In the BOQ the price is AED 600,000/= whereas the actual market price is AED 300,000/=
Engineer wants to deduct AED 600,000/= on the basis of what is in the BOQ (because if there would have been addition then the Contractor would have asked based on BOQ rate)whereas the Contractor agrees for AED 300,000/= which is the market price (the Contractor cannot be deprived of his reward/gain if this item would have been deleted)
2) As per the Contract, the post tension slabs are to be designed and executed by the Contractor. The tender/contract drawings show the thickness of the slabs as 380mm whereas after design the thickness works out to be 340mm.
Client/Engineer wants to apply deduction/negative variation for the 40mm reduction in the slab thickness.
The Contractor is not accepting the deduction as there is no change to the original scope which includes the design and the contract is Lump Sum, therefore the thickness shown in the tender drawing is irrelevant (the risk and reward is that of the Contractor).
3) The floor finishes specified to be RUBBER FLOORING (no thickness is mentioned in the contract).
The Contractor made submission of RUBBER FLOORING having thickness of 15mm. The Engineer rejected and asking to submit/use 40mm thickness.
The Contractor is asking for the variation for the additional requirement of thickness which was not specified in the original scope. Whereas the Engineer is not accepting the variation as his stand is that this missing information should have been clarified during the tender stage
ANSWER: Dear Girhar,
Thank you for your question and apologies for late response.
1. The Cost to be omitted for the omission of Skylight would be AED 600,000 in line with the Contract rates since it is same item described under the contract. If the Contractor feels that, he has incurred losses as a result of the omission of the items, he can submit a claim for such provided he has a contractual reason for that which must include that; the omission has exceeded the allowable limit...you need to check the contract. At times, it could be 10% or 0.1 deviation as stated in Clause 13 provided it has not been amended under COPA.
2. According to the design of the post tensioning (whether by shop drawings or detailed working drawings for post tension slabs), the thickness has changed from 380mm to 340mm. This is a variation that must be valued accordingly and obviously, this would be a negative variation for the Contractor and a cost saving variation for the Employer. If the Contractor has done any value engineering (clause 13) which has led to this savings, he needs to demonstrate it with relevant documentations and calculations and he can be paid a fees as per the value engineering clause.
3. On Rubber flooring, if the contractor did not qualify in his tender the thickness of the items and it is neither stated in the specification nor can be worked out from the dimensions of the sectional drawings for the rubber flooring, then, it would mean that, the contractor offered to execute such work at such rate for any thickness whatsoever. The contractor's case is weak here.
Hope i address your doubts?
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QUESTION: Thanks Femi and request further to clarify ---
1.The Clause 13/FIDIC 1999 ,does not state about deviation and there is no other particular condition or amendment.
2.Post Tension Slabs not designed by the Engineer . It is Contractor's obligation.Therefore what is given in tender drawings are irrelevant as it is to be designed by the Contractor.
3.Design and specification are responsibility of the Engineer therefore if there was any specific requirement of 40mm then that should have been given by the Engineer.
1. The Clause 13 o cited should be read along with Clause 12.3(a) and (b), then, the deviation would apply.
2. If it is the Contractor's obligation to design the post tension slabs and it was designed deviating from the tender drawings thickness of 380mm, the reason for the reduction in thickness must be identified and if it is to the benefit of Contractor, there has to be a cost saving passed on to the Employer. The Engineer's approval of the shop drawings and the contractor's designs confirms the instruction to vary the thickness. Information in the tender drawings are never irrelevant (except where the contract says so by use of some words like "the thickness is indicative or "not accurate") as they form the basis of the contract and any deviation from it shows that, the parties to the contract never envisaged such deviation / variance.
3. As explained above.
I hope my above explanation helps?