Construction Law/BOQ

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Question
QUESTION: Dear Sir

FIDIC 1999

Assume that the drawing shows to install 150L water heater.Due to an error in the BOQ, it is described as 100L. Then the contractor has to use 150L or 100L water heater rate for the heater.

Could you give your answer for both re-measurable & lump-sum type of contracts.

ANSWER: Dear Sudantha,

Thanks for your question.

If the Contract is Remeasurable contract, the issue is purely discrepancies in the contract document and the Engineer would be notified to clarify. If the Engineer clarified and it is confirmed that it is an error in the BOQ and the Contract allows for errors to be corrected (i.e. no change to clause 12), then, the error will be corrected and if there is no evidence that the contractor has foreseen (or should have foreseen) the error; appropriate entitlement would be granted to the contractor.

However,

If it is under a lump sum contract, (except the CoC PROVIDES OTHERWISE), the principle of Lump Sum contract denotes that, Clause 12 must have been amended ofcourse and as such, it would be understood that the contractor has already retained the risk for either of the items whether 150L or 100L (as would be clarified by the Engineer as being correct) and there would not be adjustment to the Contract sum.

Hope this clears your doubts?

Regards

Femi

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

QUESTION: Dear Sir

For the first part, the Contractor cannot say that the error was unforeseeable, because the drawing shows that the heater is 150L & the drawing is priority compared to BOQ as per the CoC.

Then what is the entitlement of the Contractor.

Br

Sudantha

Answer
Dear Sudantha,

The Contractor has not unilateral right to use whatever he wishes. All discrepancies must be notified to the Engineer for his clarification and further instruction. In case, the Engineer decides a choice of an item which the Contractor could not have anticipated during tendering, then, it would be treated as a variation under re-measurable contract. The priority of documents only helps to interpret the intent of the Contract which will in turn help to ascertain what the Contractor has foreseen or should have foreseen or is expected to have understood ordinarily. Again, this can only be allowed under a re-measurable contract that, the contractor could say "this is what i have priced for as per my understanding of the interpretation of the contract document and priority of documents". But such contractor will have a slight issue on "why he has unilaterally assumed and concluded without a recourse to clarification request to the Engineer".

Hope this helps?

Regards
Femi

Construction Law

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Femi Alofe

Expertise

I can answer all questions relating to the followings: 1. Contract Administration - variations, contract clauses interpretation, all post contract procedures, valuations and certificates questions, extension of time issues and prolongation cost matters. 2. Contract Practice - Any questions regarding forms of contract like JCT, FIDIC & other Bespoke forms. 3. Quantification, measurements and Estimating questions 4. Contracts and construction law questions and dispute resolutions problems. 5. All FIDIC Conditions of contracts

Experience

Out of my 24 years experience in construction industry, i have the following specific experience: 1. Contract Administration - 15 years in contract administration with over 10yrs in Managerial positions covering africa and the middleeast. 2. Contract Practice - 15 years experience with over 10yrs in Managerial and expert positions covering africa, north america and the middleeast. 3. All pre-contract procedures, Tendering, Quantification, measurements and Estimating questions - 20 years experience. 4. Contracts and construction law questions and dispute resolutions problems - 15 years experience with over 10yrs in Managerial and expert positions and 5 years expert witness and active practice in arbitration proceedings covering africa and the middleeast.

Organizations
1. FAIQS - Fellow, Australian Institute of Quantity Surveyors, Australia 2. FRICS - Fellow, Royal Institution of Chartered Surveyors, UK 3. CCP - Certified Cost Professional AACEI, USA 4. PQS - CIQS, CANADA 5. ACIArb. - CIArb, UK 6. MNIQS - NIQS, NIGERIA 7. RQS - QSRBN, NIGERIA

Publications
1. AACEI RP on Estimating, 2010

Education/Credentials
1. B.Tech (QS) 2. RICS professional course, CEM - UK 3. MSc , UK NARIC 4. Professional Doctorate ( to commence 2016)

Past/Present Clients
1. Larsen & Toubro Ltd, Dubai UAE 2. Larsen & Toubro (oman) LLC 3. Archi + Web consortium, Abuja Nigeria 4. George Dike & Associates, Minna Nigeria 5. Public works Authority (Ashghal), Doha Qatar

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