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QUESTION: Dear Sir,
General Conditions of Contract: FIDIC MDB June 2010
Sub-Clause:1.8 Care and Supply of Documents - Last Para

Last para of above sub- clause is as follows.
"If a party becomes aware of an error or defect in a document which was prepared for use in executing the Works, the party shall promptly give notice to the other Party of such error or defect."

My questions are as follows.

1. As I think, since this clause is in the General Conditions of Contract, any party can contractually talk about its contents, only once the Contract is awarded. Please clarify whether I am correct.

2. What are the advantages, each party can gain by the said notice Contractually?

3. If the said Notice was given by the Contractor and by which he points out errors in the BOQ prepared by the Employer in a 'Measure and Pay Contract', say on missing BOQ items,which any Tenderer has not pointed out before tendering, is it possible to get them incorporated in the BOQ as a Variation?

Thank you.

ANSWER: Dear Shantha,

Sorry for late answering.The specific replies of your questions  are as under:

1.It is not necessarily that such errors can only be pointed out after award of the Contract. One party(The Contractor) may point out any error or defects even before award-I means during Pre-bid meeting.But such technical errors may be raised at any stage,when noted and should be notified to the other Party under the said clause.
2. The General Conditions are not intended to impose, on the recipient of another Party's document, any duty of care owed to the Party in respect of the discovery of errors or defects, but such a duty may be
implied under the applicable law. The notifying party may gain advantages by discharging liabilities at a latter stage,if issues occur due to that errors or defects.
3.Generally, this clause deals with errors and defects of technical nature and don't address the financial matter.If a BOQ item is really missing of a work specified in drawing and it is not covered under other provisions of the Contract or in preamble to BOQ, then this work will be dealt under variation by following clause-13.1.


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

QUESTION: Dear Sir,
Thank you very much for your invaluable reply.

Please let me raise a clarification.

The GCC applicable here is FIDIC MDB June 2010 - Harmonic Edition(Pink Book), which has been prepared with minor adjustments to their Red Book 1999.

Though according to the Red Book, "an error or defect in TECHNICAL NATURE"can be raised, here in the Pink Book, it is "error or defect in document" implying "an error or defect in ANY NATURE, WHETHER TECHNICAL, FINANCIAL OR ANY OTHER".

Therefore under this clause, the Contractor is entitled to quarry on missing BOQ items too pursuant to other relevant specific clauses.

Kindly confirm whether I am correct.

I am glad to receive a reply at your earliest, to enable me to finalize this matter early.

Thank you Sir.

Answer
Although,in Pink book,any type of errors or defects of any nature may be raised. But I have not faced such a condition  of missing BOQ. ASs I have already said that the Contractor may raise the error of missing BOQ, provided, its drawing and specs. are available in the documents and its cost is not covered in any other item of BOQ. I can,t say that you are fully correct or not , it depends upon the type and nature of missing item.

If you still feel  any ambiguity and are not satisfied with the answer, you may send the whole Document along with BOQ and the detail of missing item directly to my private email mahmoodarshad27@gmail.com .I will send you the detailed line of action.
Take care
Regards
Engr. Arshad Mahmood  

Construction Law

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Arshad Mahmood

Expertise

I may answer to the questions relating to FIDIC 4th as well as FIDIC 2010 MDB Harmonized version,price adjustment ,Variations,Eot and Cost claims,EPC Contract,Bidding Document,consultancy Contracts,certification,Standard Forms, Dispute resolution; and others pertaining to Contract implementation.

Experience

Contract management and Contract Administration, using FIDIC Conditions of 4th Addition as well as Fidic 1999 Red, Yellow and Silver Books including MDB Harmonized Edition 2010. Particularly in the area of Procurement of Contracts, Certification,Price Adjustment, variations,disputes management, EoT and Cost Claims; and other contractual issues arises from time to time during currecy of the Contracts.

Organizations
Member -Pakistan Engineering Council Member -Pakistan Engineering Congress Member -FIDIC Organisation

Publications
Joint Venture and Consortium Agreements for Pakistan Engineering Council,Pakistan

Education/Credentials
BSc Civil Engineering; Basic Management course; Hydro power Projects; and various other on Job Trainings

Awards and Honors
Commendation Certificate for the excellent management qualities and dedication at Ghazi Barotha Hydropower Project; and Certificate of Excellent work performed during Survey Camp.

Past/Present Clients
Water and Power Development Authority (WAPDA),Associate Consulting Engineer(ACE) and National Engineering services Pakistan(Pvt.) Limited (NESPAK)

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