Omission of Items Included in the Bills of Quantities, but not Shown on the Drawings

I recently received a request for advice from a Claims Class student which I thought would make a good blog topic as I have come across this on several occasions.

The query was as follows:

  1. The Contract is a lump sum and not subject to remeasurement. The BoQ was prepared by the Contractor at tender stage.
  2. During the project closure, some items listed in the BoQ were not provided since these items were not included on the tender drawings, shop drawing or final as built drawings.
  3. The Client deducted these items as an omission at final account stage as the Contractor did not complete any of these billed works. The Contractor disagrees with this and asserts that he took the risk on the lump sum contract and the BoQ was merely for guidance and valuation only.
  4. What is the Contractor and Client’s entitlements under FIDIC for this kind of a situation?
  5. What should be the standing/stance of the Contractor on this matter?
  6. Is the Client entitled to omit the value of the BoQ items not fulfilled by the Contractor despite it been a lump sum contract.?

My reply was as follows:

  1. This a fairly typical scenario that I have come across on several occasions and arises from the Employer/Engineer wanting both to have his cake and to eat it.
  2. You will of course need to check the details of the actual contract, but the following is based upon a typical contract of this type based on FIDIC, where the Contract is based on a lump sum price.
  3. The BoQ is usually stated in the contract to be an estimate, not to be relied upon and only to be used only for evaluating monthly progress and variations.
  4. The BoQ is usually way down the order of precedence stated under Sub-Clause 1.5 (Priority of Documents) and below the specification and drawings.
  5. This is a lump sum contract, so the lump sum is defined by what is shown on the drawings and included in the specification.
  6. If therefore, something is not shown on the drawings/specification, but listed in the BoQ, it is not part of the Contract or the lump sum price and cannot be deducted.
  7. The best way to illustrate this is by looking at the reverse scenario. If something is shown on the drawings, but not listed in the BoQ, would the Engineer/Employer pay for it as a variation? I doubt it very much.

The Institute of Construction Claims Practitioners has a couple of detailed case studies on this subject, kindly provided by Claims Class. To request a copy, please send an email with your contact details to hello@instituteccp.com with “Valuing Variations” in the subject line.


Claim Appendices and Editing

In previous ICCP blogs we have dealt with what should be included in a claim narrative and how the narrative should be formatted, presented and written to enhance the chances of an award being made in a timely manner. In this blog, we discuss the records, evidence and substantiation of the claim, how they should be presented within the document and the final stages that you need to go through before the claim is ready for submission.

Arrangement of the Appendices

When the claim narrative has been completed, we usually sit back and congratulate ourselves because all the research, the collecting of evidence and the hard work of writing the narrative has been completed. Unfortunately, however, we still have quite a lot of work to do to put the claim document in a suitable condition for submission. In previous Top Tips papers, we discussed the subjects of making the document user-friendly and ensuring that it is a stand-alone document with the inclusion of exhibits and additional documents to provide substantiation of statements made in the narrative and the costs used in the calculations. Much of this is achieved by the use, and the organisation of, the appendices.

An effective way to make the document user-friendly is to compile the submission in two volumes, with the narrative contained in the first volume and the supporting documentation in a separate volume or volumes. This allows the reviewer to refer to the supporting documents whilst reading the narrative contained in the first volume. The narrative will contain numerous references to exhibits and other documents offered to support the claim and such documents should be separated into appendices and arranged in a logical manner. Each appendix should have dividers with clearly-labelled tabs and, if necessary, the appendices should have sub-dividers to assist in the location of documents. For example, if Appendix A contains exhibits referenced 1 to 20, then each individual exhibit should be located behind a sub-divider with an appropriate label from 1 to 20. The inclusion of all the information within the claim document will ensure that, as well as being user-friendly, the claim will be able to be reviewed by someone unfamiliar with the project or the circumstances surrounding the events leading to the claim and they will be able to gain a complete understanding of the whole issue without the need for any external references.

For example, the organisation of the appendices for a typical claim would be as follows:

APPENDICES

  1. List of Exhibits
  2. EOT 2 Baseline Programme
  3. Revision-C Drawings of the Transformer Room
  4. Photographic Records Showing the Status of the Transformer Room at the Time when
  5. the Alteration Work was Instructed
  6. Extracts from the Contractor’s Monthly Report for December 2012 Showing the
  7. Contractor ’s Progress Against the Baseline Programme
  8. Revision-D Drawings of the Transformer Room
  9. Impacted As-Planned Programme
  10. Extracts from the Contractor’s Audited Accounts for 2013, 2014 and 2015
  11. Cost Calculations
  12. Supporting Information for the Cost Calculations

The above are arranged in the approximate order in which they appear in the narrative.

The appendices should be shown on the contents page of the claim narrative and also on the volumes containing the appendices. If the appendices are contained in more than one volume, each volume should have an individual contents page detailing the appendices contained in that volume. Each appendix should include a flysheet behind the divider separating the appendices; the annotation on the flysheet should match the list of contents.

Exhibits are copies of the project records that are used to substantiate statements made in the claim. The exhibits should be listed on a separate contents page and either arranged in chronological order or in the order in which they appear in the narrative. If the latter method is adopted, however, it should be noted that if it is necessary to refer to a particular exhibit more than once within the narrative, the order will soon become illogical.

A very user-friendly way of referencing substantiating documents within the narrative is by including cross-references to the exhibits by the use of footnotes. Whilst it is tempting to give each exhibit an exhibit number in the footnotes at the time of writing the narrative, e.g.Exhibit 19 – Daily Site Report, 21/11/12, I can guarantee that if this method is adopted, the exhibit numbers will have to be revised at a later date. Most likely, this will be necessary because during editing, or following a review by another person, it will be necessary to introduce an addition to the narrative that requires additional substantiation, or an additional exhibit will be required to substantiate something or other. When this happens, and especially if the exhibits are arranged in chronological order, any numbers allocated to the exhibits will need to be revised. For this reason, it is better to leave the numbering of the exhibits until such time as all editing and internal reviews have been completed and a complete list of exhibits has been established and listed in the List of Exhibits. (Download PDF version of this blog, which includes a sample List of Exhibits).

Editing and Review

We are now at the stage where the narrative has been completed and the appendices have been compiled. Whilst it may be tempting at this point to breathe a sigh of relief, press ‘print’ and submit the claim document, we still have two important tasks to complete.

Firstly, we need to review and edit the whole submission document and secondly, we need to have the exercise repeated by a second person. If the person deputised to carry out the review has no knowledge of the project or the circumstances surrounding the claim, then so much the better because he will be reviewing the document from a totally-fresh point of view. Consequently, if something does not make sense to him or requires additional explanation, then this subject should be revisited and revised by the author.

The reviewer should put themselves in the place of the person who will eventually have the task of dealing with the claim and advise the author on unclear passages, incorrect grammar, unsubstantiated statements and the like. The reviewer should also refer to any programmes, calculations and the like that are referenced in the document to ensure that the narrative has incorporated the correct information, that explanations contained in the narrative are easily followed and that any cross-references to other documents are correct. Calculations should also be mathematically checked at this stage.

It is almost inevitable that when the editing and in-house review have been completed, revisions and changes will have to be made. When making such changes it is important to remember to revise all sections affected by the change. For example, if it is necessary to change one of the calculations included in the calculation sheets, it will probably be necessary to make corresponding revisions to the narrative in one or more places and probably also in the Executive Summary.

It is usually the case that when a claim is submitted it will be the subject of discussion and used as a basis for negotiations with the other party. Consequently, it is often necessary to produce a revised version of the claim, either to add additional information, or to change something that has been agreed during the negotiation process. In such situations, care must be taken to ensure that the whole of the revised document remains consistent. For example, if a calculation has to be revised which results in a new amount for the claimed additional payment, then the sections of the narrative that deal with the additional payment will need to be revised in order to maintain consistency with the newly-calculated figure, as will the Executive Summary and possibly other sections.

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What Qualifies as a Force Majeure Event Under FIDIC?

  1. One of our distance learning students contacted me for some advice on a claim that she had received based on force majeure on a contract under the FIDIC Yellow Book. My advice may be summarised as follows and is also applicable to the 1999 FIDIC Red Book:
  2. To qualify as a force majeure event, the event or circumstance needs to tick allthe boxes defined in Sub-Clause 19.1 (Definition of Force Majeure), which lists the following criteria:
    • Beyond a Party’s control;
    • The Party could have not reasonably anticipated;
    • The Party could not have reasonably avoided;
    • Which is not substantially attributable to the other Party.
  3. The sub-clause then lists examples of types of exceptional event or circumstances that should be considered as force majeure. The list includes war, hostilities, rebellion, disorder and natural catastrophes and several other circumstances. The list is not definitive and provided that an event is of a similar nature, it should qualify.
  4. Sub-Clause 19.2 (Notice of Force Majeure) requires the party to give notice within 14 days.
  5. Sub-Clause 19.4 (Consequences of Force Majeure) provides that, if notice has been given, the Contractor may claim for an extension of time if the Time for Completion will be delayed and the payment of any Cost for some, but not all circumstances. This sub-clause refers back to Sub-Clause 19.1 (Definition of Force Majeure) for the types of event under which Cost may be claimed.

Evaluating Defects

In Claims Class Case Studies, we present a case study of a real situation for the reader to study and decide on the correct contractual outcome. The author’s opinion of the solution is presented underneath.

The following describes the situation for this case study.

  1. The project is an international airport terminal constructed for the exclusive use of the country’s flagship airline and also to accommodate the new Airbus A380 airliner. The form of contract is the FIDIC 1999 for Building and Engineering Works Designed by the Employer.The project was designed and procured in a very tight time-scale and this led to several major variations for additional work being instructed during the construction period. The Engineer issued extensions to the Time for Completion due to the variations, but these were significantly less than the Contractor had claimed for.
  2. The Employer, facing immovable deadlines from his operations division, insisted on completion being achieved in a very tight time frame, despite the additional work instructed through the variations and this placed significant pressure on the Contractor to carry out finishing works in a rushed manner and also allowed very little time for snagging. The result was that when the project was handed over, certain of the finishing works including, plasterwork, ceramic floor tiling to the main concourse, ceramic wall and floor tiling to the toilets and painting and decorating were not in accordance with the standards required by the Specification.
  3. The Engineer produced extensive snagging lists and when issuing the Taking Over Certificate, recorded these as being defects to be made good during the Defects Liability Period. The recorded defects were not disputed by the Contractor, who nevertheless made the point that the sub-standard workmanship was a direct result of not being allowed a reasonable time to complete the Works. On reviewing the defects list, the Employer however, advised the Engineer that the rectification of many of the items included on the snagging lists would cause an unacceptable level of disruption to the airport operations and that he would accept some of the defects without them being made good.
  4. Given the instructions of the Employer, what would be an appropriate course of action for the Engineer to take?

Claims Class Case Studies – Author’s Opinion

  1. The fact that the Contractor has not carried out some of the finishing works in accordance with the standards of workmanship included in the Specification is a breach of his obligation sunder Sub-Clause 7.1 (Manner of Execution)which provides that: ‘The Contractor shall carry out the manufacture of Plant, the production and manufacture of Materials, and all other execution of the Works: in the manner (if any) specified in the Contract, in a proper workmanlike and careful manner, in accordance with recognised good practice …’
  2. Whilst the Contractor has committed a breach of contract, he is willing to remedy the breach by making good the defects. The Employer has however denied the Contractor the opportunity to do so by deciding to accept the works without many of the defects being made good. The Employer is obtaining beneficial use from the defective finishes, so it cannot be contemplated that the Contractor should not be paid for the defective work. On the one hand therefore, the Contractor has not provided the Employer with workmanship to the specified standards, so it is inequitable that he should pay the agreed price for the sub-standard work. On the other hand, however, the Employer is gaining a benefit from the work in the condition that it was provided, so the Contractor clearly deserves to be paid for this work.
  3. Some guidance of a suitable solution can be found under Sub-Clause 9.4 (Failure to Pass Tests on Completion),which provides that: ‘If the Works, or a Section, fail to pass the Tests on Completion repeated under Sub-Clause 9.3 [Retesting], the Engineer shall be entitled to: order further repetition of Tests on Completion under Sub-Clause 9.3; if the failure deprives the Employer of substantially the whole benefit of the Works or Section, reject the Works or Section (as the case may be), in which event the Employer shall have the same remedies as are provided in sub­paragraph (c) of Sub-Clause 11.4 [Failure to Remedy Defects]; or issue a Taking-Over Certificate, if the Employer so requests.In the event of sub-paragraph (c), the Contractor shall proceed in accordance with all other obligations under the Contract, and the Contract Price shall be reduced by such amount as shall be appropriate to cover the reduced value to the Employer as a result of this failure. Unless the relevant reduction for this failure is stated (or its method of calculation is defined) in the Contract, the Employer may require the reduction to be (i) agreed by both Parties (in full satisfaction of this failure only) and paid before this Taking-Over Certificate is issued, or (ii) determined and paid under Sub-Clause 2.5 [Employer's Claims] and Sub-Clause 3.5 [Determinations].’
  4. Snagging and final inspection by the Engineer should reasonably be regarded as comprising tests on completion. The Employer has requested that the Taking Over Certificate be issued without the defective work being made good, so the provision contained in Sub-Clause 9.4 that ‘the Contract Price shall be reduced by such amount as shall be appropriate to cover the reduced value to the Employer as a result of this failure’ should be applied.
  5. Obviously, calculating a value that is ‘appropriate to cover the reduced value to the Employer’could be a challenge to the Engineer, but I would suggest that if this were based upon what it would reasonably cost the Contractor to remedy the defective work, this could be an acceptable solution to both parties.

Climatic Conditions

We recently had a request on social media to discuss when climatic conditions may provide grounds to a claim.

There may very well be times when a project is affected by climatic conditions such as heavy rainfall, extreme temperatures, snow or high winds, but the test as to whether such conditions provide grounds for a claim is generally not whether they affected the project or not, but whether the conditions were exceptional. If the climatic conditions are not exceptionally adverse, then the contractor is deemed to have been able to have reasonably anticipated such conditions and to have allowed for them within his price and programme.

FIDIC uses the term ‘exceptionally adverse climatic conditions’ and the JCT contracts refer to ‘exceptionally adverse weather conditions’ as giving grounds for extensions of time. The key word here of course is ‘exceptionally’. The NEC contract provides that ‘adverse weather’ may be a claimable event, but goes a step further and removes subjective speculation as to what may be considered as exceptional by including a provisions that this may only be applied if a weather measurement which is shown to occur on average less frequently than once in 10 years, is recorded within a calendar month.

If you wish to bring about a successful claim therefore, it will be necessary to prove that the conditions were in fact exceptional. Local metrological records are a good way of proving that the conditions actually occurred and may possibly also be used to demonstrate that they were exceptional. An Internet search may also reveal historical data for the site location so that the records for the conditions in question may be compared with the average, or even better, with historical extreme conditions. If you do not prove, firstly that the conditions delayed or otherwise affected the project and secondly that the conditions really were exceptional, then the claim will most likely fail.


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