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Question
Dear Sir,
I am very sorry to disturb you on the same question and clarifications already received from you twice,are as copied below.
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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.

ANSWER: 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.

---------- FOLLOW-UP ----------

QUESTION: Dear Sir,
Thank you very much for your quick reply.
Further details with respect to my queries and your clarifications on questions under 2.0 are as follows.

2.0 General Conditions of Contract are FIDIC MDB June 2010 and the Contract is Re - measurement. Therefore BOQ is inevitable but no "Employer's Requirements" in the Priority List and also not generated them by Particular Conditions of Contract.

The most strange thing in this Contract is, as per Section 6 on Page 79 of "ADB User's Guide to Procurement of Works", "Employer's Requirements" is available.

(a) I will write to the Employer as you have advised, to get the ER and BOQ established as Contract Documents and to get their order in the Priority List.

(a) I think, it is not out of point to bring the above mentioned shortcoming to ADB too. Please advise.

(c) Though the Tenderers have not queried on the above quoted missing BOQ items, they have asked number of other anomalies, the result was to issue an entire new BOQ and the Employer has quoted in writing that, the entire Preamble is free of any errors. But still there are few errors in the Preamble and the revised BOQ
is also still not 100% OK, since it still specifies to include the value of missing items in available items in the BOQ.

This is a re-measurement Contract and it is the responsibility of the Employer to  present Contract Documents reasonably free of errors. As I understand, Common Law also imposes an implied such warranty and when those documents are followed, the result produce will be satisfactory.

I am grateful, if you would kindly advise me and give me your valuable opinion on trying to get Variation orders on missing BOQ items by pointing those errors in the Documents and the above mentioned Implied Warranty.

Thank you.
Answer:   Dear Shantha,


Thank you for coming back with these details.

MDB (Pink) Book is similar with Red Book, hence you have re-measured quantities and BoQs, but you do not have ERs, which are characteristic to Yellow, Silver and Gold Books.

You seem to be making a confusion in respect of  "ADB User's Guide to Procurement of Works", as that deals with procurement only and applies only up to Contract signature. It only governs the tendering/ contracting process.

Once the Contract is signed, the FIDIC Conditions of Contract, MDB in your case, apply.

a) yes, you might well write to the Employer.

But check again Contract Agreement (that document on which the Parties are signing) and the General Conditions, the MDB Book itself. Under Sub-Clause 1.5 you'll find it under point (i), which reads: "the Schedules and any other documents forming part of the Contract."

BoQ is one of the Schedules!!!

b) unless you have a direct relationship with the ADB, I do not think you should. But obviously, you know best what is there.

c) if items still missing, you better ask for clarification prior submitting the offer. Otherwise, all missing items, described in Technical Specifications of Drawings, must be executed and their price included in adjacent items included in the BoQ.

As for the legal considerations, you might not survive the battles needed to win the war ...

Why on earth would you need a Variation Order for the missing BoQ, since you are at the tendering time?!?!?!!?

Just ask to be specifically included in the documents list and as the case may be, to have its order of precedence indicated. But as shown above, Sub-Clause 1.5, point (i) gives you the answer.

Hope that clarifies the matter.
Florin NICULESCU
Mediator, Adjudicator,
Procurement Expert
www.AbInitio.ro
_________________________________

Dear Sir,

Our previous clarifications are as above. Please be patient to read the following too.

Re. Para commencing "You seem to be ------"

I have forgotten to indicate that, this is an ADB funded Project. Therefore the Employer should follow ADB Guidelines, according to which, there should be "Employer's Requirements".

Therefore the ADB has made an error, since their Guideline is against the GCC(General Conditions of Contract). I wanted to point out this to ADB, to enable them to correct their Document before further use.

Re. a)

I agree with you sir, though the BOQ is included in the Schedules, it is to be confirmed in PCC(Particular Conditions of Contract).PCC is dead silent on Contract Documents.  

Re b)

Clarification for this is available, at the beginning of this memo.

Re c) above.

Now the Contract is already awarded to the Company to which I joined, after this award.That is why I am warring on about missing BOQ items and trying to find ways to get their values included in the Contract Sum.

I apologize for my inability to disclose it before.

Thank you sir.

Answer
Dear Shantha,


You did indicate is an ADB financed project, but once again, all that matters now, is the Works Contract concluded between Employer and Contractor.

And that Contract indicates under Sub-Clause 1.5, point (g), "the Specifications". What else do you need? Why are you bothering with the "ADB Guidelines", which were used by the Employer to conduct the procurement process?

As for your additional comments:

a) If GCCs indicate the "Schedules", hence the BoQ, why would you need anything else in the PCCs?!

b) - assume no further clarification needed.

c) - assume no further clarification needed.

Stop worrying: BoQs are in the Contract, Accepted Contract Price has been established base dn them, which at the time, constituted Contractor's Financial Offer.

All you can do, solely for your peace of mind, send a letter to the Engineer/ Employer, asking them to confirm in writing that "Schedules" indicated under Sub-Clause 1.5, point (i) are referring to the BoQs.

Otherwise, just leave it.

Hope that clarifies the matter, once and for all.

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Florin NICULESCU

Expertise

Questions related to Civil Engineering Contracts, using FIDIC or other Conditions of Contract, concerning Procurement procedures and documents (pre-qualification, tendering and contracting) and Services/ Works Contracts implementation matters including Determinations, Payments, Time Extensions, VOs, Claims/Disputes. Additionally, questions related to dealing with International Financing Institutions. Can also answer questions in Romanian. Can not answer improperly formulated questions.

Experience

Over 20 years of experience in the field of design, works supervision, construction, management of aid funds and technical assistance for various types of contracts implementation, including severe conflictual contractual situations leading to Claims and disputes. Claims/ Contract management, Disputes adjudication, Arbitration.

Organizations
Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers www.aric.org Former member of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List www.drb.org and of DRBF Chapter for Eastern Europe http://dabdrb.googlepages.com Former member of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List http://www.sidir.pl/sidir/index.php?action=czlonkowie&a2=r Member of “AllExperts.com” volunteers pool http://www.allexperts.com/user.cgi?m=4&expID=85358&catID=914 Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States www.constructiondisputes-cdrs.com

Education/Credentials
- Graduate in 1994 the Construction Institute - Graduate of several FIDIC,Procurement and other courses - Graduate of first Disputes Board Members Mentoring Scheme (http://www1.fidic.org/resources/adjudicators/pupilage.html) - FIDIC Accredited Adjudicator

Past/Present Clients
- Several State organisations/Ministries , such as Ministry of Transport, National Admistration of Roads, Ministry of Regional Development (former Ministry of European Integration), Public Works and Housing, Central Contracting and Financing Unit in Romania and also in Turkey, Croatia and Macedonia - Numerous Western based private consultancy companies - full CV and other relevant information available at www.abinitio.ro

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