Construction Law/Provisional Sum

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Question
Dear Sir

According to the FIDIC 1999 Red Book, SCL 13.5 (b), the Contractor shall insert his percentage for adjustment of PS in Appendix to Tender.

However in the BOQ also has a provision to insert his attendance fee and OH&P, based on PS amount.

Therefore during the post contract stage, what method the PQS has to pay to the Contractor, either in accordance with Appendix to Tender or BOQ.

Sudantha

Payoe

Answer
Dear Sudantha,

I do not understand the need for your question.  Has the Contractor entered two conflicting figures? Has the Contractor omitted to enter figures somewhere?  The FIDIC clause is very clear.  

Clause 13.5 b states
'(ii) a sum for overhead charges and profit, calculated as a percentage of these actual amounts by applying the relevant percentage rate (if any) stated in the appropriate Schedule. If there is no such rate, the percentage rate stated in the Appendix to Tender shall be applied.'

In this instance I would suggest that the BoQ is the 'appropriate Schedule' and thus you should pay in accordance with the BoQ.  Unless of course, there is no rate in the BoQ, in which case, you should pay the rate in the Appendix to Tender.

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Peter M. Elliott

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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 www.eotprotocol.com before submitting a question.

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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
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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')

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Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

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B Sc(Hons) in Civil Engineering

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