Construction Law/Errors or Defects in Documents
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?
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.
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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.
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 email@example.com .I will send you the detailed line of action.
Engr. Arshad Mahmood