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Construction Law/Sub-clause 12.3 explanation


QUESTION: Dear sir
My question is related to sub-clause 12.3 of Fidic 2010 MDB version.
Under which scenario do sub-paragraph 'a' of sub-clause 12.3 applies?
Is it correct that it applies when a change in BOQ and measured quantities
Of an item occurs due to site conditions but not due to change in design
i.e. change in quntity is not due to instructions regarding variations?
Please give your expert opinion and oblige.

ANSWER: Dear Tahir,

I would say that clause 12.3 a applies where the quantities vary due to the site conditions.  Clause 12.3 b applies when there is an instruction or variation.  Remember that you must satisfy all four conditions for the clause to apply.  Also the rate is often reduced, when there is an increase, due to the economies of scale

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QUESTION: Respected sir thanx for sparing ur precious time.
Actual situation is as under:
An expressway is under construction in Pakistan. Initially, the expressway
Was designed as a 4-lane facility and contract was awarded. However, during
The currency of contract, the Employer decided to change the expressway to
a 6-lane facility. So, the Engineer has now issued determination regarding
Inclusion of increased quantities through a variation order. However, he has
refered sub-paragraph 'a' of sub-clause 12.3 and recommended enhancement
In rates of the items of the Works whose rates are already given in the BOQ.
In my opinion, the Engineer should have referred sub-paragraph 'b' of
sub-clause 12.3 because change in quantities is occurring through a variation order/
Instruction and the rates of BOQ items shall not change.
I hope I have explained the scenario. Please guide me and oblige.

ANSWER: Dear Tahir,

I would not use clause 12.3 b, as this clause refers to new items only.  Your extended road will be using the same materials and procedures as in the original contract.  I would consider an EoT if any of the activities are on the critical path and affect the end date.

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QUESTION: Respected sir thanx again for expeditious reply.
Then what about the rates of those items which are already in the BOQ?
Will these be changed as done by the Engineer in this case?
These rates will remain unchanged?
I guess from your answer that rates of BOQ items will remain unchanged
In the variation order and only an EOT will be granted if the additional works affect
The critical path. Am I right? Please answer and oblige.

Dear Tahir,

I suggest that you consider carefully the effect of any changes in the rates due to the increased quantities.  My initial reaction would be to leave them as they are.  

Yes, you only get an EoT if the critical path is affected, which would be probable if the quantities are increased by 50%.

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Peter M. Elliott


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 before submitting a question.


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