Construction Law/queries


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.

Dear girdhar,

1) BoQ's are incompatible with Lump Sum Contracts, especially when items are varied.  Is the role of the BoQ defined in the Contract?  If not you have to go with the market rate.

2) Are the slabs compliant with the Employer's Requirements?  If so, there is no basis for a deduction.  

3) Is the flooring compliant with the Employer's Requirements?  If so, there is no basis for instructing a change without an increase in payment.  If the flooring is non-compliant, then a change can be instructed at no extra cost.  The Employer is responsible for the Contract documents.  If there are any inconsistencies or lack of clarity, the judge will rule agains the employer on the basis of contra preferentum.

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Peter M. Elliott


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 before submitting a question.


Value . . .
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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')

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

B Sc(Hons) in Civil Engineering

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