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Construction Law/VO for item not comparable to BOQ


Dear Peter,
We are Subcontractor working under FIDIC 1999 red book.
Please advise on following scenario:
We have received variation instructions from the Contractor under sub-clause 3.3 to and also asked for proposal for the varied works but did not mention Cluase-13.
This varied work is in Main Contractor's scope in his contract with Client but not in our subcontract scope with Main Contractor.
Moreover, the varied work is not comparable to BOQ item and therefore we submitted new rate build up along with detail substantiation and manufacturer quotation.Please note that scope of work is supply and installation of elevators with stainless steel hairline finish and variation order is for putting special/decorated finishes on elevator doors.We prepared rate build up taking one door as one unit.

But recently we received response from the Contractor that the rate build up is not fulfilling the requirement and provided us their assessment by calculating stainless steel rate per tonnage which is comes out to be very low cost as compared to our submitted cost.

My questions are:

Can Contractor assess the proposal by taking raw material rates from the market?
Elevator measuring unit is number of doors and Contractor is measuring stainless steel weight can be used for fabricating door,please advise to respond on it?"

Dear Jawad,

The Contractor can do whatever he likes, but is it compliant with the Contract?  

I would suggest that it is unfair to price a finished item on the raw metal costs, without including the cost of working the material.  It might work if the doors were originally wood and now brushed stainless steel and the only change was the material, but even then it would be doubtful.  I suggest that you pursue your claim based on your submission of the extra cost.  Alternatively you could decline to provide the doors on the basis that you cannot get the finished doors in time.  

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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.


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)
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.Romanian Proverb 2002
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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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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')

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

B Sc(Hons) in Civil Engineering

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