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Construction Law/Item Show in Drawing with No BOQ Item

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Question
I am working in United Arab Emirates doing an infrastructure project on re-measurement basis and we have an issue that there are steel sleeves shown in some locations in the water network layout as pipe protection under road crossings but we have no BOQ item for that.

Tender Query: No Query from any bidder at the Tender stage.

Contract: Conditions of Contract for Works of Civil Engineering Construction (Fourth Edition 1987) reprinted in 1992 with further amendments as prepared by Federation Internationale Des Ingenieurs-Conseils (FIDIC), and amended or supplemented by Conditions of Particular.

Method of Measurement: CESMM3 with an added phrase in BOQ preamble saying:
“Item reference shown for the class of works according to CESMM3 generally follow the convention used by CESMM3. However, any deviation in the convention used shall not the basis for a claim”

Pricing Note in BOQ Preamble:
The Bill of Quantities, including all notes and instructions, form an integral part of the Contract Documents.

However, the descriptions contained in the Bill of Quantities for each item are not necessarily complete. The Contractor is referred to the Conditions of the Contract, Specifications and Drawings as well as relevant Standards and Codes of Practice for further information.

The Contractor is required to fully aware of the full content of other Contract Documents including the Conditions of Contract, Tender Drawings and Specifications.

"Drawings, Specifications and Bill of Quantities and all other documents are complementary and if any item is included in any of them, it shall be deemed included in all."

The client is arguing is that based on the last phrase, the steel sleeves are considered as included in contractor price and contractor is not entitled for a variation since no query was raised at tender stage.
Please advise.

Answer
Dear Mohamed,

The Employer is obviously trying to write out the basic principle of a remeasured contract, where the BoQ is indicative only, and the Employer takes full responsibility for the accuracy of the BoQ.  I suggest that this situation is a potential case of unlawful enrichment under the Civil code.

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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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