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Construction Law/Regarding the Omission as per FIDIC red book 1999


Dear Sir,
Firstly, I would like to thank you for your time towards helping people out and clearing their doubts. it is a very kind gesture and more so in todays such a fast paced professional life.

I would like to begin by saying I'm a Quantity Surveyor Still at the starting stage of my career with  a couple of years  experience up my sleeves. And I'm fascinated by the contractual aspects of this  field So the more I study about the subject, the more I would imagine myself in the "worst case scenario" situation and how I could interpret and optimize the contractual clause to abate or Indemnify the party I'm representing.

So one of the hypothetical Situation is as Follows :
Suppose there is an Item in the BOQ, Say Marble which is Priced at 100 AED/m2, the contractor claim 15% profit on all Items, meaning the actual price according to Contractor is 85 AED, However the market price is just 30 AED, which of course is redundant now that the contract has been  signed on the provided rates and prices. Now the Engineer wants the marble flooring to be totally Omitted pursuant to FIDIC 12.4 and replaced by Ceramic tiles whose rate is 35 AED Inclusive of Profit.
Assuming the Contractor has not yet Ordered any material  nor does the Omission would constitute extra work, How would you as an Engineer make a fair and just determination and compensate the contractor for the loss, Considering he managed to price the marble much higher than market price excluding the profit in the Event of :
1) The Contract Being Lumpsum, where the Price is fixed and so is the Quantity at the contractors risk.
2) The Contract being Re measurable, where only the Unit rate is Fixed and Quantities could vary.

Thanks and Regards.

Dear Fasih Uddin,

I don't do hypothetical questions, unless we are in a restaurant and you are paying, especially as I have answered several similar questions recently.  I suggest that you join LinkedIn and join several of the discussion groups that deal with questions about FIDIC and other contractual matters.  

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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 . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
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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