The Basis of Quantities

Hi Ashraf



Absolutly your write

Hi Ashraf,



Presumable If this contract is remeasured under FDIC 4th edition and no variation to the works, the answer shall be described as follows.

The Quantities set out in the BOQ are the estimated quantities (FDIC COC Cls 55.1) and contact price shall be changed on actual measured on work completion. no price adjustment to the contract BoQ even contact price increased or decreed by 15%

Also contactor shall not entitle EOT

Hi Ashraf,

First of all, the main purpose of the time schedule is to control the construction process time which depends on the rates which in turn depend on the quantity.

So it is advisable to use the drawings quantities in the program which will reflect the suitable method statement.

But before that I think it is preferable to send a letter to the consultant to save your rights, if the quantity is increased to the the limit that will affect the completion date.

As you have the right to reprice the items with more quantities, and also to increase execution time.

Ashraf,



In an early post you stated:



1- Contract is remeasured contract.

2- the following points are mentioned in the preamble of the contract BOQ:

- Drawings, specifications , BOQ and all other documents are complementary and if any item is included in any of them , it shall be deemed included in all.

- The contractor shall not use these BOQ as a basis for a construction program or for the purpose of ordering materials or arranging sub-contractor.

- The whole of the quantities shall be treated as approximate only and are given to provide common basis for tendering.

We have also in the condition of contract clause 52.3 "Variations Exceedung 15%"that the contractor has the right to claim if if the amount of the contract increased or decreased by more than 155 of the effective contract price.





"The contractor shall not use the BOQ as a basis for a construction program" seems plain enough.



Cl52.3 gives you potentially more money, but does the contract elsewhere give you more time?



You don’t state what version oe edition of FIDIC you’re working under or if it been amended to account for the above.

Probably, unless the Client organisation could show that the particular clause was introduced by the Contractor

Thanks David



Sorry about my own spelling, but the general onus is still with the client organisation as I believed, (I think)

I wikipedia’ed the term and this is what I found,



"Contra proferentem is a rule of contractual interpretation which provides that a term which is found to be ambiguous should be construed against the party which imposed its inclusion in the contract. That is, the preferred interpretation will be the one most favourable to the party upon whom its inclusion was imposed. Or, more accurately against (the interests of) the party who imposed it. The rule only applies if, and to the extent that, the clause was included at the unilateral insistence of one party without having been subject to negotiation by the counter-party.



It translates from the Latin literally to mean "against (contra) the one bringing forth (the proferens)."



The reasoning behind this rule is to encourage the drafter of a contract to be as clear and explicit as possible and to take into account as many foreseeable situations as he can.



Additionally, the rule reflects the court’s inherent dislike of standard-form take-it-or-leave-it contracts also known as contracts of adhesion (e.g., standard form insurance contracts for individual consumers, residential leases, etc.). The court perceives such contracts to be the product of bargaining between parties in unfair or uneven positions. To mitigate this perceived unfairness, legal systems apply the doctrine of contra proferentem; giving the benefit of any doubt in favour of the party upon whom the contract was foisted. Some courts when seeking a particular result will use contra proferentem to take a strict approach against insurers and other powerful contracting parties and go so far as to interpret terms of the contract in favor of the other party, even where the meaning of a term would appear clear and unambiguous on its face, although this application is disfavored.



Contra proferentem also places the cost of losses on the party who was in the best position to avoid the harm. This is generally the person who drafted the contract. An example of this is the insurance contract, a great example of the contract of adhesion, above. There, the insurance company is the party that is completely in control of the terms of the contract and is generally in a better position to, for example, avoid contractual forfeiture. This is a principle of long standing. See, for example, California Civil Code §1654 (“In cases of uncertainty . . . the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.") California enacted this section in 1872. Numerous other states have codified the rule as well.



International legislation such as the European Principles of Contract Law, have also codified this rule of law. Also, in the arbitration procedures of the International Chamber of Commerce there are (a few) cases in which arbitrators recall the principle of contra proferentem in their legal reasoning."

Ashraf



Be careful.



My belief is that your contract will say that if the quantities are outside the +/- 15% band from the BoQ, then the rates in the BoQ will be subject to renegotiation / revision. This will not necessarily be a variation to the Works, as the contract drawings and specification may mean that the quantities in the BoQ are simply incorrect. This is implied by all your posts anyway.



In terms of a cash flow, you need to talk to the contractor’s QS and find out what rates he intends to apply to the elements which fall outside the 15% band. Use those for the initial cash flow, (it can only get better after that). When the firestorm subsides after you present the cash flow forecast, I am sure there will be enough resources applied to agreeing the new rates and you will have to adjust the cash flow(s) to suit the new rates.

Ashraf



Agreed you need to load the quantities and resources, but these MUST relate to the drawings which describe the Works to be built - there is no point in using the BoQ just because they have the quantities someone else believed that it would take. You (the corporate you - probably a quantity surveyor or measurement engineer if they still exist) must take off the quantities from the contract drawings and you should then apply those quantities to the programme to get the necessary activity durations.



Also don’t forget the old latin saying of contra preferendum, where the party that draws up the contract documents has the duty to make them all mutually self descriptive (assuming you are working under English Law). If there is any discrepancy between the documents, then the client is responsible and must hold the contractor harmless from the discrepancy.

Clause 14 Program should be prepared as close as possible to the program that was Tendered and accepted by awarding the Contract.



Afterall a contract has to be what was contemplated at the time of award (offer, acceptance, meeting of minds, possibility of performance, legal, of sound mind, capacity to contract etc).



You should resist the notion that the Engineer can dictate to you how to run your business.



If the Engineer should insist on you programming the work in a manner not consistant with what you offered in your tender then you should insist that an instruction is given varying the work.

A programme is first and foremost a tool for managing the project, the answer therefore should be obvious.

Hi

Ashraf !



If you are a Contractor,just follow first paragraph of what NICOLAS said.



It will be good for you.



Cheers

Ashraf,



You may programme according to contract BOQ AND contract completion time, but this would be of little use,

except maybe in litigation

or

you may programme according to "real" quantities AND

corresponding "real" completion time, and check if the ten month is possible or not: if not -> EOT



hth



Nicolas

Ashraf

Of course there are common principles how a contract should be - but there is no obligation that it must be.

Important is the content of the contract. Be careful, we planners are no attorneys/lawyers. Transfer this question to the experts.

For us it is diffucult as well because we don’t know in detail the complete contract.

Good luck

Dieter

Ashraf



The tender programme must be based on the tender drawings, not the BoQ. How can you know where a particular amount of a billed rate is to fall within the programme unless you refer to the drawings. The BoQ is merely a vehicle for payment, and a guide only to the amount of work to be done.



Similarly the Contract programme baseline must be based on the Contract drawings issued when the contract is signed. This may (and probaly will) be different to the drawings at tender stage.

Ashraf



As you mentioned, there are different conditions in that contract: ".. shall not use as a basis .." would mean: you pay. "..Variations exceeding 15%.." would mean: they pay because you exceed by 20%.

The only advice I can give you: consult your lawyer - there is an obvious contradiction in terms of the contract. It is very dangerous if you try to solve this lack of contract - and: This is PM’s responsibility.

Good luck!

Dieter

p.s. I’ll leave now for the rest of the day (German time)

Hi Ashraf



The contract said that you’ll work with a certain quantity of steel, cubicmeters of rooms,.... Your offer and the agreed price were based on this quantity. After detaile Engineering it was shown that this assumption was wrong. The BoQ has to be changed. This is a change of scope - a CLAIM.

Now it depends from the contract; e.g.:

- Was the BoQ base of the contract --> claim and more money

- Was the BoQ an assumption to be proved by the contractor before signature --> bad luck for you

Read the contract or better: contact your lawyer.

Good luck

Dieter