Hi everyone,
I just came across this forum and decided to join as I have an issue with regard to Clause 52.2 of FIDIC 1987 and a sub-clause added under COPA.
Clause 52.2 provides for adjustment of rate if a variation relative to the whole of the Works or to any part thereof has rendered the BOQ rate inapplicable. Then, our COPA qualifies: ‘Provided further that no change in the rate or price for any item contained in the Contract shall be considered unless such item accounts for an amount more than 2 percent of the Contract Price as stated in the Letter of Acceptance and the actual quantity of work executed under the item exceeds or falls short of the quantity set out in the Bill of Quantities by more than 25 percent.’”
Based on the word “and” in the COPA, our Engineer (and Employer) insists that before a rate can be adjusted, the quantity of the varied work should exceed 25% of the original BOQ quantity and that the corresponding cost of such variation should exceed 2% of the Contract Price. In other words, even if the change in quantity is more than 25%, if the corresponding change in cost is less than 2% of the Contract Price, no adjustment in rate can be allowed.
In my understanding, if the variation exceeds 25% of the BOQ quantity, the rate should be adjusted even if its corresponding cost does not exceed 2% of the Contract Price. The 2% relates only to the value of the work item before the variation.
I would appreciate it if anyone can share his views in this regard.
I just came across this forum and decided to join as I have an issue with regard to Clause 52.2 of FIDIC 1987 and a sub-clause added under COPA.
Clause 52.2 provides for adjustment of rate if a variation relative to the whole of the Works or to any part thereof has rendered the BOQ rate inapplicable. Then, our COPA qualifies: ‘Provided further that no change in the rate or price for any item contained in the Contract shall be considered unless such item accounts for an amount more than 2 percent of the Contract Price as stated in the Letter of Acceptance and the actual quantity of work executed under the item exceeds or falls short of the quantity set out in the Bill of Quantities by more than 25 percent.’”
Based on the word “and” in the COPA, our Engineer (and Employer) insists that before a rate can be adjusted, the quantity of the varied work should exceed 25% of the original BOQ quantity and that the corresponding cost of such variation should exceed 2% of the Contract Price. In other words, even if the change in quantity is more than 25%, if the corresponding change in cost is less than 2% of the Contract Price, no adjustment in rate can be allowed.
In my understanding, if the variation exceeds 25% of the BOQ quantity, the rate should be adjusted even if its corresponding cost does not exceed 2% of the Contract Price. The 2% relates only to the value of the work item before the variation.
I would appreciate it if anyone can share his views in this regard.