Construction Law/BOQ Error

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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: Hello Sudantha,


Welcome back, thank you for your question.

According to Sub-Clause 1.5, Technical Specifications and Drawings are taking precedence over schedules, i.e., BoQ.

Hence, Contractor must execute the Works as described in the Technical Specifications and Drawings.

Normally, Contractor should have asked for a clarification at the time of tendering, but now is too late and has to live with what he has priced.

I presume your question is again academic, but the principle is the same for both Yellow and Red FIDIC.

Except that for Yellow FIDIC, it might be the case that drawing showing the heater is orientative (not imposed) and Contractor has the freedom to design whatever they think is suitable and if the Engineer approves the design, the Contractor will execute it accordingly and be paid for it, the Lump Sum. Hence, Contractor would have probably included some reserves in his tendered price, to cover exactly this kind of uncertainties.

Additionally, there should be no BoQ in a Yellow FIDIC Contract.

Hope that answer your question.

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

QUESTION: Dear Sir

In RE-MEASURABLE CONTRACT if the drawing is priority, then the client's QS can say that although the BOQ is described as 100L water heater, contractor's rate is for the 150L water heater due to priority of document??

or

Rate is for the 100L water heater in line with BOQ and rate to be agreed for the 150L water heater as per drawing which was installed.

Could you clarify what is the correct way.

Thanks

Answer
Hello again Sudantha,


Thank you for coming back.

Rate is for the 150l heater, as described in the Drawings.

But! That is the basic principle answer. Please mind that Contract may include other information, somewhere else, which may reverse that.

One needs to make sure that all details in the Contract are properly identified and assessed, as always, any little detail may completely change the situation.

Hope that clarifies the matter.

Now, hoping I satisfactorily answered the question, tell me please: I see your questions are rather academic/ theoretical than from real situations in a Contract you are dealing with.

Where are these questions coming? Are you preparing a PhD thesis, or what. Suggest you give me that detail, so I can understand where you are coming from and adjust my answers accordingly.

Hope that helps!

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Florin NICULESCU

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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.

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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.

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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

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- 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

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- 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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