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Construction Law/Items of Work not covered in the BOQ

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Question
Dear Arshard,

General Conditions of Contract: FIDIC MDB June 2010
Type of Contract: Measure and Pay (or Re-measurement)
Contract Title: Laying 1000 mm dia. DI Pipeline
Present position of Contract: Already awarded to the Contractor, to which I joined subsequently.

Clarifications Requested:

1.0 All the relevant items are not covered in the BOQ, the details of which are available in the Document named "Employer's Requirements". But the "Employer's Requirements" and BOQ are not established as Contract Documents.

2.0 It is specified in the "Preamble to BOQ", to study General Conditions of Contract, Contract Data, Specifications and Drawings before pricing BOQ and not asked to study "Employer's Requirements" in this connection.

3.0 Further it is quoted in the "Preamble to BOQ", that all work required to complete the Project are covered in the BOQ and in pricing them, all the related costs - Basic and Incidental are to be included.

But lot of items have been missed in the BOQ.

4.0 Irrespective of what is quoted as in 3.0 above, it is noted at the beginning of Bill No.1 - General Bill, to include the cost of all the missing items which are Contractually required in the items already available in the BOQ.
- Is such instruction acceptable in a Measure and Pay Contract?

5.0 It has been asked to submit clarifications within a period specified but the possible repercussions due to not asking such clarifications are not mentioned.

6.0 There were 12 Tenderers, but nobody had requested clarifications on missing items including the Contractor to which I joined after it was awarded this Contract, but all of them have requested clarifications on some other matters.

7.0 Last para of clause 1.8 of General Conditions of Contract on "Care and Supply of Documents"  specifies that, "If a party becomes aware of an error or defect in a document which was prepared for use in executing the Works, the party shall promptly give notice to the other party of such error or defect."

Since this is a clause in General Conditions of Contract, it can be used only after awarding the Contract and irrespective of requesting clarifications before Tendering.

Kindly consider all the above facts and advice me, whether there is any way of entitling the Contractor for the receipt of the value of missing BOQ items.

Kindly clarify considering all the above facts.

Thank you.

Answer
Dear Shantha,

Basic thing what I have noted is that the Bidding Documents have not been prepared as per standard instruction s for preparing such documents.However, as you have said that in General Bill,it is mentioned that to include the cost of all the missing items which are contractually required in the items available in the BoQ.
If the Contractor did not bother to raise any clarification in pre-bid meeting and also ignored to add the cost of missing items which he considers may become the part of his work.It may infer that the Contractor is ready to do the Works within the cost specified in BoQ.
in spite of above ,it will be observed that what are the nature of missing items.If it is only  minor accessories, the Contractor will be bound to do that work without getting additional cost.On the other side ,if these missing items are the major items of Work and were even missed in the Tender drawings,the Engineer should consider such items under variations(Clause-13).

Nevertheless, the Contractor may raise his observations to the engineer and let the Engineer determine the matter under Sub-cluase 3.5. If it is against the Contractor ,the Contractor has the obtion to refer the case to Dispute Board.
 Regards
Engr. Arshad Mahmood

Construction Law

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Arshad Mahmood

Expertise

I may answer to the questions relating to FIDIC 4th as well as FIDIC 2010 MDB Harmonized version,price adjustment ,Variations,Eot and Cost claims,EPC Contract,Bidding Document,consultancy Contracts,certification,Standard Forms, Dispute resolution; and others pertaining to Contract implementation.

Experience

Contract management and Contract Administration, using FIDIC Conditions of 4th Addition as well as Fidic 1999 Red, Yellow and Silver Books including MDB Harmonized Edition 2010. Particularly in the area of Procurement of Contracts, Certification,Price Adjustment, variations,disputes management, EoT and Cost Claims; and other contractual issues arises from time to time during currecy of the Contracts.

Organizations
Member -Pakistan Engineering Council Member -Pakistan Engineering Congress Member -FIDIC Organisation

Publications
Joint Venture and Consortium Agreements for Pakistan Engineering Council,Pakistan

Education/Credentials
BSc Civil Engineering; Basic Management course; Hydro power Projects; and various other on Job Trainings

Awards and Honors
Commendation Certificate for the excellent management qualities and dedication at Ghazi Barotha Hydropower Project; and Certificate of Excellent work performed during Survey Camp.

Past/Present Clients
Water and Power Development Authority (WAPDA),Associate Consulting Engineer(ACE) and National Engineering services Pakistan(Pvt.) Limited (NESPAK)

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