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Construction Law/Discrepancy in BOQ & Specifications+Drawings

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Question
Contract: FIDIC 1999,
Type: Re-measurement

In BOQ, the Contractor priced two kinds of concrete 20MPa and 30MPa. However, in specifications and Tender drawings there were 20MPa and 40MPa concrete (i.e., items which were priced to be 30MPa in BOQ were supposed to be executed with 40MPa concrete as per Specifications).

Now there are three options to address this discrepancy:

Option-1, favoring the Engineer/Employer:
The Contractor should execute 40MPa concrete works without any cost because preamble of the BOQ states that prices for any works not listed in BOQ but present in other Contract Documents are deemed to be included in other BOQ rates and the Accepted Contract Amount. Moreover, since no quantities will be executed for 30MPa concrete so there will be “omission” of this item from Accepted Contract Amount.

Option-2, favoring the Engineer/Employer:
The Contractor should execute the works of 40MPa concrete on the quoted rates of 30MPa concrete because in priority of documents it is Specification>Drawings>BOQ, i.e., BOQ falls at the end of the list. Further, it was mentioned in instructions to bidders that “The bidders are instructed to study all the tender documents and discrepancies should be reported before submission is made. Failure to do so will amount tenderer absolving the discrepancies”.

Option-3, favoring the Contractor:
The take-off from tender drawings for 20Mpa+40MPa equals to sum of BOQ quantities of 20MPa+40MPa, which indicates that there this was merely a discrepancy which might have occurred due to a typo error (as the 40MPa was mistyped as 30MPa).

So, based on this, the Contractor may contend that for 20Mpa, he should be based on the corresponding BOQ rate as per actual quantities. While for 40MPa, he should be paid on the BOQ rate of 30Mpa concrete as per actual quantity.

Option-4, favoring the Contractor:
Contractor may contend that 30MPa item is not being executed so it may be omitted. But, for 40Mpa item there should be a new rate to be evaluated under GC-12.3. and that rate to be used for payment of actual executed quantities. However, to be noted that rate of 40MPa will definitely be higher than BOQ rate of 30MPa.

Please advise, from a neutral perspective, that which of the above approach shall be the most suitable solution doing justice with both the Parties or if you can suggest any other alternative. Thanks.

Answer
Dear Mohammed,

Thank you for this question.

i the case of a FIDIC contract where the Employer has designed the Works and prepared all the documents (a RED book contract) any error in the BoQ is usually at the Employer's expense, after the Engineer has made his assessment and issued a variation to correct the error. This is consistent with your Option 4 above. The risk under a RED book contract rests with the Employer, except to the extent that it is specifically detailed for the Contractor.

I cannot be certain how clear the drawings were or the time that the Contractor had to reconcile the drawings and specification with the BoQ; this may be a factor for further consideration.

All work done by the Contractor will be subject to measurement of the net actual quantity of each item of the Permanent Works (See s/c 12.2(a)). Where the BoQ does not have an item then s/c 12.3(b)(ii) applies and a new rate or price shall be appropriate. The existing rate for 30MPa concrete will be used as the basis for calculation of the new rate.





I hope that this assists you.

Kind regards,
John Dowse

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John Dowse

Expertise

Legal; contract interpretation; quantum; delay analysis. Practitioner in arbitration, adjudication and mediation.

Experience

Thirty-three (33) years experience in building and construction, at all levels both within contracting and consulting organisations. Practising arbitrator, adjudicator, and mediator. Faculty approved trainer for the Chartered Institute of Arbitrators. Lecturer on construction contract forms and dispute resolution practices.

Organizations
Chartered Institution of Civil Engineering Surveyors Chartered Institute of Arbitrators Institute of Directors Society of Construction Arbitrators

Publications
Various UK and International construction and legal publications.

Education/Credentials
LLB (Hons), Pg Dip (Legal Practice), MCInstCES MCIArb MIOD Barrister

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