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Construction Law/conflict between requirements and BoQ

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Question
Dear Sir

1- our remeasured contract states in the scope of work included in the Particular Conditions that the Villa's gate is from wrought iron, whereas in the BoQ the relevant priced item states that the Villa's gate is from Hard Steel. Now, applying the contract properly leads to use the wrought iron since P. Conditions prevails above BoQ. Accordingly a new price will be established for this item. My question is: is this case considered Variation and should follow the contract procedure of Variation administration (although the wrought iron was foreseen upon tender stage)?

2- To manage the above case, we (as the Engineer) will ask the Contractor to submit his proposal of the wrought iron thru a price breakdown, my question is; should this be from scratch OR the existing price of the hard steel gate could be relevant and he should base his proposal upon it? i.e. he should submit 2 breakdowns one for wrought iron and one for hard steel and just the differences between different items such as the price of the material and workmanship cost, etc. shall be applied.  

3- if we base the new price on the BoQ priced one as mentioned above, should we maintain the markup (OH&P) of the BoQ priced item? if Yes, what exactly to be maintained, the markup as percentage or as a figure? e.g. if the hard steel price is $120 and the direct cost is $80, so the markup is 50% and meanwhile it is $40. if we get from the Contractor that the direct price of wrought iron is 60, what markup we should maintain; 50% (i.e the new price will be 90) OR $40 (i.e. the new price will be 100)?

Thank you Sir and sorry for my long message,

Regards,

Answer
Dear khalid,

1. You should issue a variation order.

2. All variations have to be priced in the logic of the Contract, so he whould base his new price on his accepted bill rates.

3. The mark up should be maintained as a percentage of the raw price.  

Remember, the Employer, or his agents, made a mistake by introducing an inconsistency into the Contract and thus you should be gentle with the Contractor, as he is not to blame for the problem.  

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Peter M. Elliott

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First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol www.eotprotocol.com before submitting a question.

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Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Organizations
Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

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B Sc(Hons) in Civil Engineering

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