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Dear Sir,
1.0 In one of the Contracts of 3 year Contract Period, it is quoted only in the Bidding Document that, the site for Office Building will be handed over, one year after the award of the Contract, in which the Office Building is part of the Contract. Even after 2 years of the date of award of the Contract, the said site possession is not given, irrespective of numerous written reminders and requests.

1.1 Since the late possession of the site is quoted only in the Bidding Document, what is the actual legal standing of this site possession?
1.2 In such a situation, is it advisable to get this included in a Contract document as an addendum?

2.0 In another Contract (which is already awarded), the documents named "Employer's Requirements" and "the Bills of Quantities" are not named as Contract documents, either in General Conditions of Contract or Particular Conditions of Contract.

The "Employer's Requirements" covers, "General Requirements", "General Specification" and "Specifications for some other items.

2.1 "General Requirements" provides, details of the items in Bill No. 1 - General Bill(Preliminaries Bill), which is indispensable for accurate pricing of the relevant BOQ items.It has been advised in the Preamble to Bill of Quantities that, pricing of the BOQ is to be done in conjunction with some Contract documents but no mentioning about "Employer's Requirements."

2.2 BOQ does not cover lot of items in "Employer's Requirements" but any Tenderer has not brought this to the notice of the Engineer.

2.3 Considering the above situations, is there any possibility of presenting a Claim (preferably a Contractual Claim) for the missing BOQ items?

2.4 Specifications have been specified as a Contract document and as clarified in second paragraph of 2.0 above, since Specifications are covered in "Employer's Requirements", which is not a Contract document, what is the legal position of "Specifications"?

2.5 Is it advisable to get the "Employer's Requirements" and "BOQ" established as Contract documents by an addendum?

Thank you.

Dear Shantha,

Thank you for your detailed and well ordered set of questions.

1.1 It depends how exactly is formulated and where in the Bidding Document is mentioned. But most probably, it can be construed as an obligation of the Employer after one year after the award of the Contract.

1.2 Might not be mandatory, once again, depends on above aspects, but would indeed recommend to include that in the Appendix to Tender.

2.0 If you have "Employer's Requirements" it means you're using Yellow FIDIC Conditions of Contract and hence there should be not "Bills of Quantities" (which are used for re-measured quantities under Red FIDIC), but rather a Schedule of Prices (Payments in worse case). That is not clear to me.

They should ERs and BoQs (or Schedule of Prices rather) are indicated either in the General Conditions of Contract - Sub-Clause 1.5 and most probably in the Contract Agreement too. If Employer decided to change the order of precedence, you'll also find them under the same Sub-Clause in the Particular Conditions of Contract.

Suggest you check these.

2.1 It is Tenderers' job to scrutinise entire Bidding Document and extract information from any of available documents and if unhappy, to ask for clarifications prior submitting their offer.

I suspect offers were received and hence, a number of Tenderers were happy with available information, as otherwise they could not submit the offer, including the financial offer.

Obviously, that is valid for the successful Tenderer, i.e. the Contractor.

Something is very strange here - please check and as needed, come back with additional details, especially on financial offer of the Contractor.

2.2 Then those missing items are deemed to be included in other items related to respective specific works and so they should have been priced at tendering time.

2.3 Might be possible, but in the light of the above, not much chances of success. But one need to check the whole Bidding Document and Contract before drawing a clear cut conclusion.

2.4 See considerations I made under 2.0. Once again, please check indicated documents and see if ERs are not mentioned there. But is not, most probably, it can be construed that they are in the Contract and have the order of precedence indicated under Sub-Clause 1.5. And same for all ERs.

2.5 Of course, but also clarify the order of precedence (Sub-Clause 1.5) if that is not there already.

Hope that helps, but please check and as needed, come back with some more details, if more help needed.

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