Construction Law/Errors or Defects in Documents
QUESTION: GCC: FIDIC MDB June 2010
Clause : Last para of cl. 1.8 - "If a party becomes aware of an error or defect in a document --------- the party shall promptly give notice to the other Party of such error or defect."
The relevant Contract is now awarded in which, the BOQ and Specifications are not established as Contract Documents.
The Contractor has not brought this to the notice of the Employer before Tendering or Awarding the Contract.
When this is reported, definitely it will be corrected.
1.If we let the said documents to remain as non-contractual, what are the repercussions?
2.In getting these corrected subsequent to the notice of the Contractor(before or after Award), is the Contractor entitled for any advantageous?
ANSWER: Dear Shantha,
First of all, I would like to say that I could not fully understand your question. Probably, you would like to say that BoQ and Specifications are not the part of the Contract documents. If this is the case,it is very strange as these documents are the basic part of the Contract.
Such queries could be asked during pre-bid meeting or subsequently at the time of singing of the Contract. Anyhow,the spirit of last para of sub-clause 1.8 only refers to errors and defects of a technical nature, and not to those of a financial or other nature.Moreover,the General Conditions are not intended to impose, on the recipient of another Party's document, any duty of care owed to the Party in respect of the discovery of errors or defects, but such a duty may be implied under the applicable law.
Answers of your questions are here under:
1. The repercussion will be the ambiguities due to incomplete Documents which may arise disputes.
2. The Contractor may get advantages if the BOQ is added after award of the contract,even with mutual consensus.
Better is ,it should be cancelled and and a fresh tender be again called for after making necessary correction.
Engr Arshad Mahmood
---------- FOLLOW-UP ----------
QUESTION: Thank you very much for the response.
As I have quoted at the beginning of my original question, the GCC applicable to this Contract is FIDIC MDB June 2010 and not that for CONSTRUCTION (Red Book),in which the Errors and Defects should be Technical Nature.
I the GCC applicable for this Contract, any specific nature of Error or Defects is not mentioned.
What I mainly want to get clarified is under this particular circumstance whether there are any possible claims the Contract can gain.
I have failed to understand your question. It is generally not possible to make a contract which do not establish part of the Contract of BOQ and Specifications.
Any how,if this is the case,the Contractor may give notice and raise possible claims that may arise due to the un-established BoQ and specifications of the Contract.
If you wish further detail, please send me full detail of your documents on my personal e-mail[mahmoodarshad27"gmail.com].