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Construction Law/Payment according to highest Specs


Compliance with specs and codes
Compliance with specs  
Our contract is governmental one, it is a (Design-Build) contract (design by Contractor) and meanwhile the payment method is re-measurable. Some clauses have been added to the Particular Conditions to give the Contract the spirit of Lump Sum (since it is Design-Build as I said above). Please take a look on the attached clauses.
my question is; in 47-4 it is stated that the highest specs shall prevail without any right for the Contractor to claim a financial claim, does this mean in case of highest quality or highest quantities? the following two examples:
1- a door of a special room is given and quoted in the BoQ as wooden door, however, the highest specs says that for such special room the door must be metal .. does Clause 47-4 means that the Contractor shall make the door metal with the same price of the wooden door in the BoQ?
2- the quantity in the BoQ for pole item is written 30 poles, but in highest specs it is written that a pole should be installed every 20 meters, and the total length is 900 meters, then he should put 46 poles. does Clause 47-4 mean that he should be paid with only 30 x unit price from BoQ OR 46 x unit price??

Sir, I need your help in b=view of your understanding to the attached Clauses.

Thank you,

Thank you

ANSWER: Dear Khalid,

Thank you for your question.

1. To my understanding, if you are asking for a wooden door, then the Contractor must install a wooden door, complying with the "highest specs", i.e. the most demanding specs that are coming within the discussion.

Likewise, if it is about a metal door.

But in no way I can see that as long as a wooden door is required, you can replace it with a metal door for the same price.

2. Specifications are generally giving the technical specifications/ parameters of a product, which must be fulfilled by every unit that is installed.

Sure enough, specifications not the number of units.

Hence, Bills of Quantities and Technical Specifications are not the same.

As per Clause 49, you must pay the number of units of installed poles (46 x unit price). As the case may be, the poles must fulfil the "higher specs".

Trust that clarifies the matter.

---------- FOLLOW-UP ----------

QUESTION: Dear Mr. Florin

Thank you so much but I still need you Sir to re-evaluate your opinion regarding the question # 1
The point is that we are not asking for wooden, the highest specs which is required by the Contractor to follow (i.e. that highest specs represent the requirements of the Employer) say Metal door i.e. the Employer wants metal door . Meanwhile, the 47-4 clause states clearly that the Contractor should follow the highest specs with no right to raise a claim (i.e. without cost impact). Incorporating the door item in the BoQ as wooden is a kind of mistake or conflict that the Contractor should bear in accordance with 47-4 clause , moreover, the Specifications prevails over BoQ in case of conflict among contract documents (that is mentioned in the contract) ... so what is your final opinion now?

Thank you Sir

Dear Khalid,

Thank you for coming back.

If the project required a wooden door, then Contractor must install a "highest spec" wooden door. More precisely, if by providing that wooden door the project requirement is fulfilled with the wooden door, but you prefer metal one, then whatever your preferences are above project requirements, you have to pay for.

BUT! If the project itself requires a metal door and the Contractor provided for a metal one, that is a very different situation and needs to be looked at and consider all relevant details.

Or, if you have indeed indicated somewhere that you want a metal door and the Contractor made a mistake and gave you a wooden door, in which case you are right.

Thus if the project itself does not imply automatically a metal door and if you did not expressed a clear requirement for a metal door, then you have to pay a different price if you want a metal door.

Hope that clarifies the matter.

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Over 20 years of experience in the field of design, works supervision, construction, management of aid funds and technical assistance for various types of contracts implementation, including severe conflictual contractual situations leading to Claims and disputes. Claims/ Contract management, Disputes adjudication, Arbitration.

Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers Former member of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List and of DRBF Chapter for Eastern Europe Former member of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List Member of “” volunteers pool Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States

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