Construction Law/FIDIC 99 Red Book

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Question
Dear Sir

(a)   FIDIC 1999 Red Book - remeasurement

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 either 150L or 100L water heater rate.


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

He can accept that rate is for the 100L water heater in line with BOQ description  and revised rate to be agreed for the 150L water heater as per the drawing which was installed.

Could you clarify what is the correct from the above with reason.

If the contract is lump sum under FIDIC 1999 Red Book what is the correct decision from the above?


(b) 1999 FIDIC Red Book

Sub-Clauses 17.3, (a) to (d) and 19.1, (i) to (iv) are seem to be similar.

Could you explain the application differences of these Sub-Clauses with examples.

Br

Sudantha

Answer
Dear Sudhanta

Thanks for the question. Let me explain what I understand from your question (a).
i.   The drawing shows 150 L heater while in BOQ 100 L heater is mentioned.
ii.   The Contract is based on FIDIC Red Book 1999 and is Re-measured Contract.
iii.   If the drawings have the priority, then whether the Contractor’s rate is to be considered for 100 L or 150 L heater?
iv.   What will the solution if the Contract is a Lump Sum Contract?

In your question you did not mention about the Project Specifications which are normally linked to the BOQ. The BOQ generally gives a short description of the item and the relevant Specifications explain the complete details of measurement and payment. Please cheques the specifications first. If you can find some solution then follow it. Otherwise in my opinion the rates quoted by the Contractor will be considered for 100 L heater as explicitly mentioned in the BOQ. Merely showing a larger capacity on the drawing does not mean that the contractor be penalized for the mistake of drafter of the BOQ. It is normally very difficult for the contractor to find out such minor anomalies in a short period allowed for bidding. Although some body may disagree with me but my understanding of the bidding documents suggests that ambiguity in bidding documents leads to the advantage of the Contractor until there are sound reasons to conclude that the bidder had tried to get undue advantage. A new rate would therefore be agreed with the Contractor and a V.O issued both in case of Re-measured as well as Lump sum Contract.

(b) Clause 17.3 (a) to (d) refer to Risks and responsibilities of the Employer as for as damage to works and property is concerned due to these risks. However Clause 19.1, (i) to (iv) refer to the events which would prevent a party from performing its obligations under the Contract and is enough reason for a party to suspend, stop its activities or finally lead to termination of Contract . Although the events mentioned are more or less same but the role they play under different clauses are different.  

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Abdul Majid Khan

Expertise

I volunteer for questions related to FIDIC Conditions of Contract 1992, EPC Contracts and Contracts based on FIDIC Harmonized Edition 2010 etc.

Experience

After graduation in Civil Engineering in 1970, I have experience in construction Management and Contract Management on projects in Pakistan and Middle East. I retired in 2009 as Vice President Construction Management and Contracts Divisions of NESPAK, Pakistan Premier Consultancy Organisation. Since then I am working as Free Lance Expert on Contracts and remained Chairman/Member Dispute Boards under FIDIC (Harmonized Edition) 2010 and as Arbitrator/ Member of Arbitration Tribunals.

Organizations
Currently Free Lance Contract Expert and am on the panel of Engineering Consultancy Services Punjab (ECSP) and Quaid e Azam Solar Power Company.

Education/Credentials
I have graduated in Civil Engineering in 1970.

Awards and Honors
Various Honorariums, special awards, promotions and many appreciation letters etc during my service in NESPAK. Remained Member, Board of Management of NESPAK, the highest forum in the Organization, to assist the Managing Director.

Past/Present Clients
Government as well as private clients dealing with engineering related Contracts.

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