Construction Law/Error or Defect in a Contract Document
General Conditions of Contract: FIDIC MDB June 2010 Harmonised Edition - Pink Book
As you are aware, this edition has been prepared by FIDIC, to use for the Projects funded by Multilateral Banks including ADB, by making certain changes to the Red Book.
My question is related to last para of clause 1.8 on "Care and Supply of Documents".
In the Red Book this last para is, "If a party becomes aware of an error or defect of a technical nature 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."
This same para appears in clause 1.8 as "Care and Supply of Documents", in the Pink Book, without the four words, "of a technical nature"seen in the Red Book 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."
According to the Red Book, any party can talk only on an error or defect of a technical nature,but in the Pink Book, the error or defect may be either technical, financial or any other nature.
In our present ongoing Contract, we use the Pink book."The Contract is "Measure and pay." Though it has been specified, that the BOQ has been prepared Generally as per CESMM3, the BOQ is full of errors. The main 2 errors are the omission of BOQ items for Contractor's Supervisory and Administration Personnel and his numerous plants used for the Works.
Any Tenderer has not questioned on those errors in the BOQ during Tendering period.
Now pursuant to the above clause, the Contractor is now entitled to raise these problems, even after awarding the Contract.
My first question is,
1.0 if we justify the case , can missing BOQ items be included in the BOQ definitely.
2.0 In the FIDIC Contract Gude, this clause with respect to the Red Book is interpreted as follows.
"----------.The document has to have been prepared for use in executing the Works, but it may have been prepared by (or on behalf of) the notifying party, the party being notified or (possibly) another party. 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."
3.0 Kindly clarify me the following.
3.1 What is meant by the above first sentence, "The document has to have been prepared -------. "
3.2 The simple meaning of the last sentence above.
3.3 Does this clause definitely favour the Contractor, under the prevailing situation described above.
Thank you sir, in advance.
Thanks for the question. The issue did not seem to be so complicated. However you have made it interesting.
For me, it is simple to state that the Contract requires the Contractor to be vigilant enough while executing the Contract and that when he encounters an error, he should immediately inform the Employer/the Engineer for resolution and finding a solution to it.
Regarding your question that you have found certain items missing in the BOQ and that amounts to big errors, I am afraid, I will not agree with you. The items that you have mentioned are generally covered under the overheads of the contractor which he takes into account while preparing his bid and therefore cannot be regarded as gross error.
Other errors or missing items are corrected by the Employer, when these are pointed out to him by issuing Variation Order or other similar actions provided in the Contract depending upon the type of error encountered.
As regards you questions about FIDIC commentary, I am sorry I will not be able to answer these.
Abdul Majid Khan