Construction Law/Clarification

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Question
Dear Sir,

Our Contract is General Civil works at Power Plant Project, based on fidic 1999 red book.
Contract contains a cut & fill upto +100 level (mentioned as "Site Preparation works").

There is no item for it in the BOQ.

This work has to be excuted under Preliminaries as the cost of it included in the "Preliminary item - Site Facilities" to certain extent. It is as follows

Contract says, "The Lumpsum price for site facilities in preliminary section also includes the following Site Prepartion works.

1)Excavation = 130,000 m3
2)Backfilling for site preparation(Excavated Material)= 77,000 m3
3)Backfilling for site preparation(Imported Material)= 25,000 m3

The following Unit Rates shall be used for payment in case any changes in above Quantities

1)Excavation = 1.00$ per m3
2)Backfilling for site preparation(Excavated Material)= 3.00$/m3
3)Backfilling for site preparation(Imported Material)= 10.00$/m3

However, during excavation, it was identified that excavated material is not suitable for backfilling.
Hence, Engineer has issued a Variation Order saying, All backfilling for site preparation works shall be mixed material to the portion of 7:3 imported mat & excavated mat.
New rate has established for it as 8.00$ per 1m3.

After excavation, it was estimated that backfilling volume for site preparation work is 270,000m3


The question is,
1) According to fidic, Is there any clause for the contractor to argue that portion of works included in "Site Facilities" (for backfilling) will not be applied any longer to Contract due to this variation and employer has to pay money for entire quantities?

Answer
Dear Dilum,

Thank you for this question.

The volume of backfill significantly exceeds the originally intended scope of works.

I presume that the Employer provided the original quantities, with the intention that the Contractor would rely upon same. As such the change is something for which the Employer carries the burden.

If, however, it was the Contractor who estimated the quantities, or it can be shown that the Contractor could, when tendering, have seen that the quantities were deficient, then the Employer may be able to avoid liability. Unfortunately, I would need more information to ba able to answer more precisely.


I hope that this assists you.

Kind regards,
John Dowse

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Construction Law

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John Dowse

Expertise

Legal; contract interpretation; quantum; delay analysis. Practitioner in arbitration, adjudication and mediation.

Experience

Thirty-three (33) years experience in building and construction, at all levels both within contracting and consulting organisations. Practising arbitrator, adjudicator, and mediator. Faculty approved trainer for the Chartered Institute of Arbitrators. Lecturer on construction contract forms and dispute resolution practices.

Organizations
Chartered Institution of Civil Engineering Surveyors Chartered Institute of Arbitrators Institute of Directors Society of Construction Arbitrators

Publications
Various UK and International construction and legal publications.

Education/Credentials
LLB (Hons), Pg Dip (Legal Practice), MCInstCES MCIArb MIOD Barrister

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