Omission of Items Included in The Bill of Quantities, But Not Shown On The Drawings - Claims Class

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Andy Hewitt Omission of Items Included in the Bill of Quantities, but Andy's Blog
Date not Shown on the Drawings Announcements
July 11, 2016
Category I recently received a request for advice from one of our course Case Studies
Andy's Blog,
Construction attendees. I have been asked for advice about this topic on several Construction
Contracts, FIDIC,
occasions so I thought it worthy of a blog. The situation and query was Claims
Industry Insights
as follows: Construction
The Contract is a lump sum and not subject to re-measurement. The Bill of Quantities (BoQ) Contracts
was prepared by the Contractor at tender stage.
Courses
During the project closure, some items listed in the BoQ were not provided since these items Customer
were not included on the tender drawings, shop drawing or final as-built drawings. Satisfaction
The Client deducted these items as an omission at final account stage as the Contractor did
E-Courses
not complete any of these billed works. The Contractor disagrees with this and asserts that FIDIC
he took the risk on the lump sum contract and the BoQ was merely for guidance and
valuation only. Guest Writer
Industry Insights
So…
Nina's Blog
What is the Contractor and Client’s entitlements under FIDIC for this kind of a Press
situation?
Publications
What should be the stance of the Contractor on this matter? Research
Is the Client entitled to omit the value of the BoQ items not fulfilled by the Contractor Top Tips Papers
despite it been a lump sum contract?
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My reply was as follows:
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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 too.
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 Would you like to
sum price: receive an email
notiﬁcation when
The BoQ is usually stated in the contract to be an estimate, not to be relied upon and
only to be used for evaluating monthly progress and variations.
a new article has
been posted?
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. Sign up now:
This is a lump sum contract, so the lump sum is defined by what is shown on the
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drawings and included in the specification.
If therefore, something is not shown on the drawings/specification, but is listed in the Subscribe
BoQ, it is not part of the Contract or the lump sum price and cannot be deducted.
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.
We have two case studies on this topic and would be happy to share them with you. Just
comment below and we’ll be in touch.
See previous blog dealing with the same subject, under a different scenario.
https://www.constructionclaimsclass.com/omission-of-items-included-in-the-bill-of-quantities-but-not-shown-on-the-drawings/ 1/27
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Leave a comment 199 Reader Comments
Written by Commented by Michael Farin, on July 12, 2016

Michael Farin, Could you share your case studies concerning the subject.
on July 12, 2016
Thanks and regards,
Michael
Reply
Written by Commented by Mushtaq Ahmad Smore, on July 12, 2016

Mushtaq Ahmad Smore, We have inconsistent Engineer’s decisions.
on July 12, 2016
Kindly share the case studies on this topic. It will enable for better comments.
Reply
Written by Commented by A Layman, on July 12, 2016

A Layman, Visualise, if you will, a BoQ listing priced for items not, in needed in the event.
on July 12, 2016 Doesn’t common-sense say that they can be ignored?
Reply
Written by Commented by Abdullah Al Bash, on July 12, 2016

Abdullah Al Bash, We had lots of similar case. It’s always disputable. I’d love the revise scenario, which is a smart way to
on July 12, 2016 demonstrate the case.
Thanks Andy.
Reply
Written by Commented by Imad Sawalha, on July 12, 2016

Imad Sawalha, Appreciate sharing your mentioned case studies Andy.
on July 12, 2016
Reply
Written by Commented by Irfan Mohammed, on July 12, 2016

Irfan Mohammed, Please share the case studies
on July 12, 2016
Reply
Written by Commented by BY Fong, on August 30, 2017

BY Fong, Please share your case studies .
on August 30, 2017
Thank you.
Reply
Written by
Nina Hewitt,
on August 30, 2017
Commented by Nina Hewitt, on August 30, 2017
Sending now, thanks for your comment. Nina.
Reply
Written by Commented by MANAVALAN P, on July 12, 2016

MANAVALAN P, Hi Andy,
on July 12, 2016
Can please forward me the case studies for my understanding and knowledge?
Thanks and Regards

Manavalan
Reply
Written by Commented by SAJI, on July 12, 2016

SAJI, Dear Andy,
on July 12, 2016
I totally agree with your inference on the matter. Definitely, the Employer is not entitled for a cost
deduction in this scenario
This is the fundamental aspect of a Lump-sum contract. The Contractor’s obligation is to carry out the
scope of works prescribed in the drawings and specifications. The BOQ is a mere schedule prepared
based on the drawings and specifications. It may or may not truly represent what exactly is required as
per specifications and drawings.
SAJI
No body will prepare the BOQ first
Reply
Written by Commented by Ashley, on July 13, 2016

Ashley, People still dispute this scenario?
on July 13, 2016
Reply
Written by Commented by Vineethan, on July 13, 2016

Vineethan, Hi Andy
on July 13, 2016 It would be more prudent that the Contractor study the tender documents carefully and avoid pricing
redundant items mentioned in the BOQ. It would be worth it to mention “Not Applicable” against such
items in BOQ that don’t exist in tender drawings or specifications. Thereby eliminating the risk of
inheriting a potential contractual dispute during the construction stages.
Appreciate if you could share the case studies to know how such situations unfold to a reasonable
conclusion for both parties.
Regards
Reply
Written by Commented by Ayobami Odejobi, on July 13, 2016

Ayobami Odejobi, For a lump sum contract the client is not entitled to deduct the price of any item not executed by the
on July 13, 2016 contractor at the final stage. If the reverse is the case, i.e an item found in the drawing and specification
but not found in the BoQ, I doubt if the employer will pay for it, it will be deemed that such item must
have been priced or incorporated elsewhere in the BoQ.
Looking at it from another angle, any attempt for client/employer to deduct an unfulfilled BoQ item
contradicts the objective of “lump sum”. It will be as if the contractor is being paid for work executed
only (re-measurement).
I think what the client would have done prior to final account would have been to issue site instruction
for ommission of that item in the form of a variation. In FIDIC, a lump sum can be changed only by
variation which can be addition or ommission. My thought.
Reply

SAJI, Hi Vineethan,
on July 13, 2016
Your point is valid as well! This way any possible dispute at a latter stage can be eliminated. This is a
dispute avoidance strategy!
However, we are talking about the dispute resolving mechanism contractually, if the Contractor has not
done the suggested prompt action as suggested by you, during the tender stage.
SAJI
Reply
Written by Commented by John Cagney, on July 13, 2016

John Cagney, Please forward case studies.
on July 13, 2016
Kind Regards
John
Reply
Written by Commented by Joy Vaghese, on July 13, 2016

Joy Vaghese, The bills of quantities is only to facilitate the payment to the Contractor and to an extent used to vary the
on July 13, 2016 Works before issuance of the taking over certificate (TOC).
FIDIC 1999 Sub-Clause 12.4 deals with Omission.
The Contractor can argue and prove that the Lump sum amount included in the tender did allow for his
over head and profit, and also priced this omission item as a risk element to cover the items not shown
on the drawings or specs. Hence the Employer cannot omit this item.
Reply
Written by Commented by Shahid, on July 13, 2016

Shahid, Please share the case study
on July 13, 2016
Reply
Written by Commented by Abdul Qayyum, on July 16, 2016

Abdul Qayyum, i) The type of Contract is to be known. Usually in FIDIC EPC and /or P &DB mile stones are provided
on July 16, 2016 depending on;
i)Employer’s Requirements
ii) Tests during execution and then the final acceptance Tests
iii)However if some employer’s design is included, the Employer shall provide BOQ for that purpose and
measuremnt clause for that purpose is to be included in PCC
Reply
Written by Commented by Benjamin Gope, on July 16, 2016

Benjamin Gope, I would like to receive more of these articles
on July 16, 2016
Reply
Written by Commented by Ross, on July 18, 2016

Ross, Please share the case studies.
on July 18, 2016 Very common scenario.
Reply
Written by Commented by Ajeem, on July 21, 2016

Ajeem, Please share the case studies
on July 21, 2016
Reply
Written by Commented by Magdy, on October 30, 2017

Magdy, I am interesting to read more about this
on October 30, 2017
Reply
Written by Commented by Bashar, on July 22, 2016

Bashar, The second scenario may be difficult to implement … The payment will be based on the items in the
on July 22, 2016 BOQ… If the work not done, payment to this item will not be certified for this item.
Accordingly, if the item listed on the BOQ dose not exist then will not be certified and consequently
deducted.
Please share the case study
Bashar Albany
Reply
Written by Commented by MK, on July 24, 2016

MK, Having the same problem, please forward case studies.
on July 24, 2016
Reply
Written by Commented by Damith Gayanga, on July 26, 2016

Damith Gayanga, Hi Andy,
on July 26, 2016
Could you please share these case studies with me.
Thank you.
Reply

SAJI, HI Andy,
on July 27, 2016
Please share the case studies….
SAJI
Reply
Written by Commented by Amy Jackson, on August 05, 2016
Amy Jackson, A very clear, easy to understand answer to this problem – thanks!
on August 05, 2016
I would greatly appreciate if you could provide a copy of the case studies referred to.
Amy
Reply
Written by Commented by Ahmed sherif, on August 13, 2016

Ahmed sherif, Hi Andy
on August 13, 2016 I am following your replies and advice and actually they are very helpful
Kindly send me a copy of the case studies to expand my knowledge please.
my email: aad.sherif@yahoo.com
Regards
Ahmed Sherif
Reply
Written by Commented by Prince James, on August 16, 2016

Prince James, Hi Andy,
on August 16, 2016 Good Afternoon,
I am Prince James Kavalam, Claims Manager, FAST Consortium, Riyadh Metro.
I have read your articles.
With ref. to the above subject, I would be grateful if you could send me the case studies that you are
referring to.
Many thanks.
Best Regards,
Prince James.
Reply
Written by Commented by Deep Thampan, on September 04, 2016

Deep Thampan, Good afternoon Andy,
on September 04, 2016
I totally agree with your arguments
Appreciate if you could share the two case studies.
Thanks and Regards,
Deep Thampan
Reply
Written by Commented by Marwan Al Ghouthani, on September 07, 2016

Marwan Al Ghouthani, Good Morning Andy,
Same case happened with us also during our projects, most of our contracts with clients were lump sum
type and as u said client and engineer always trying to have cakes and eat.
Sometimes we could get our own and was fine.
Thanks for your idea and i would like to have the other two case studies.
Best Regards
Marwan Al Ghouthani
Reply
Written by Commented by Saeed Cheema, on September 16, 2016

Saeed Cheema, Dear Andy:
You have explained the matter in an excellent manner.
Could you please share these case studies with me.
Thank you.
SAEED
Reply
Written by Commented by Joe Mansour, on September 23, 2016

Joe Mansour, Thank you for sharing these case studies.
Regards
Reply
Written by Commented by Hill Miranda Abril, on September 24, 2016

Hill Miranda Abril, Interesting!
Kindly share your case study in this subject matter.
Reply
Written by Commented by Abdul Qayyum, on October 03, 2016

Abdul Qayyum, The Contractor is entitled for the omitted works which the contractor prepared for his own conviency,
on October 03, 2016 otherwise he has fulfilled the Employer’s Requirements.
Reply
Written by Commented by Ediriisa W, on October 15, 2016

Ediriisa W, Thank you for this information.
on October 15, 2016
Kindly share the case studies on omission of items i the BOQ or Lump sum items.
Reply

Abdul Qayyum, Asimilar thread is being discussed in FIDIC Contract’s Group on LinkedIn. Friends may share that to
on October 16, 2016 see the insight of the issue/matter.
Reply
Written by Commented by Saad Enan, on October 17, 2016

Saad Enan, I fully agree with your stance. Kindly forward the mentioned study-cases.
on October 17, 2016 Regards,
Saad Enan
Reply

Abdul Qayyum, I again submit that we may see the similiar thread on FIDIC Contract’s Group
on October 17, 2016
Reply
Written by Commented by Tahir Ayub, on October 19, 2016

Tahir Ayub, kindly share the studies
on October 19, 2016
Reply
Written by Commented by firas, on October 20, 2016

firas, Dear Andy,
on October 20, 2016
Please can you send me the case studies?
Regards
Firas
Reply
Written by Commented by Jiju Mathew, on November 01, 2016

Jiju Mathew, Dear Andy
on November 01, 2016
Could you please forward case studies to my email address
Thanks
Jiju
Reply
Written by Commented by Bryce Doubell, on December 15, 2016

Bryce Doubell, Would be great to have a look at the case studies.
on December 15, 2016
Reply
Written by Commented by Edmond, on December 23, 2016

Edmond, Hi Andy,
Could you kindly share your case study with me.
Regards,
Edmond
Reply
Written by Commented by Sanath Neelawela, on January 04, 2017

Sanath Neelawela, Could you kindly share your case study with me.
on January 04, 2017
Regards,
Sanath Neelawela
Reply
Written by Commented by Kapila Perera, on January 22, 2017

Kapila Perera, Could you kindly explain how to resolve the matter? If the contractor is given a place in BoQ ( Tender’s
on January 22, 2017 adjustment schedule) to do the necessary quantity adjustment (omission and addition) but contractor
has not omitted an item which is not on the drawing.
Reply
Written by Commented by Nina Hewitt, on January 22, 2017

Nina Hewitt, Hi Kapila – I’ve passed your comment onto Andy for his comment. It’s his weekend today so
on January 22, 2017 he’ll respond sometime over the next day or two. Thanks, Nina.
Reply
Written by Commented by Andy Hewitt, on January 23, 2017

Andy Hewitt, Hi Kapila,
on January 23, 2017 You will need to check the actual contract conditions but in most circumstances if an item is not on the
drawing or in the specification, it is not included in the lump sum price.
The drawing and specification define the scope and quality of the Works. The bills of quantities are just
an estimate to be used for interim valuations and for calculating variations.
Check the Claims Class papers – these may provide you with more insight.
I hope this helps.
Reply
Written by Commented by zyman, on January 30, 2017

zyman, Dear Andy,
on January 30, 2017 Let’s say I have two conditioners in the BOQ priced from my side. But it is not in the drawing
and specifications. As I understand from this article, I can claim them even if I didn’t install
them. But my question is, how will the client approve this item in my interim payment
certificate? I’m more than sure the client will say that there is no conditioner provided by me
and therefore it will not be approved and paid.
Reply
Written by Commented by Rolly Canlas, on January 26, 2017

Rolly Canlas, Very interesting subject and appreciate if you could send me the two case studies on this topic, please.
on January 26, 2017
Regards,
Rolly
Reply
Written by Commented by Ciaron Ferns, on February 10, 2017

Ciaron Ferns, Thank you , very interesting,
on February 10, 2017
I would appreciate if you could share your case studies please.
Reply
Written by Commented by Abhishek Kumar Bidua, on February 15, 2017

Abhishek Kumar Bidua, Hi Andy,
Please share case studies with me.
In some instances, Contract states that it is a lump sum contract, however, few bills of the BOQ states
that these are the provisional quantities and it shall be remeasured as per actual execution at site. In
such situation, basic nature of lump sum contract is compromised. Based on the final valuation of these
quantities, can contractor demand for adjustment in General and Preliminaries? for under recovery of
the same in case of deletion of the items from these bills.
Reply
Written by Commented by Andrew, on February 22, 2017

Andrew, Dear Andy
On principal alone, why is the contractor expecting to be paid for something he has not done? This
would be unacceptable in any other walk of life, so why is it acceptable in a construction contract? It is
beyond belief to me that a contractor who has clearly priced for a specific/defined item, not done (or
required to do) the work and still expects to be paid for it! We should always go back to the intent of the
contract which I’m sure is to pay for, or be paid, for required work/services properly executed.
Reply
Written by Commented by A Layman, on February 22, 2017

A Layman, A lump sum contract normally is a contract to do work described in the Specification and Drawings, If
on February 22, 2017 there is a BoQ, the rates in the BoQ are used for variations. Any work not done may we excluded from
the price using those rates. In a lump sum contract, the quantities in the BoQ are informative,
Reply
Written by Commented by Andy Hewitt, on February 23, 2017

Andy Hewitt, Andrew and Mr Layman,
Thank you for your comments. This has proved to be a lively blog, which is what we like, because it
demonstrates the different points of view that we all have.
I agree with A Layman and would add that building contracts are not like contracts in other walks of life,
because each project is bespoke and this results in extremely complicated contract documents.
As A Layman states, the contract usually stipulates that the drawing and specification define the scope
of work and in an ideal world, the bills of quantities would be an accurate measurement of this.
Unfortunately we don’t always live in an ideal world and we often see items missed from the bills of
quantities and sometimes items included that are not shown on the drawings. I have to also ask why,
when an item is included in the BoQ but not on the drawings, why would the Contractor price it? Such
things happen however and we have to deal with them equitably.
Let me close by asking a question. On a lump sum contract, if something is shown

on the drawings, but not included in the BoQ, could the Contractor claim for additional payment?
Reply

A Layman, Andy Hewitt’s question as to why the Contractor price in the BoQ an item not required by the
on February 23, 2017 Specification or Drawings I would offer two answers.
!. the Item might be required as a necessary implication of the design. A necessary detail not
shown but to be provided as part of the Contract. No entitlement to extra money.
2. The Item might be an Item included only for pricing a possible addition or a provisional sum.
Entitlement to an extra payment if the contract varied.
Reply
Written by Commented by Joy varghese, on February 24, 2017

Joy varghese, Generally in the lump sum contract you are deemed to include in the contract price for items shown on
on February 24, 2017 the drawings. Before submitting the tender either you qualify or price this in the boq as additional item
Reply
Written by Commented by Zait, on March 07, 2017

Zait, I’m very grateful for your advice and agree with you.
on March 07, 2017
However, could you kindly assist in the following instances in a lump sum Contract:
1. Splicing Reinforcement is not shown on the drawings nor quantified by Consultants in BoQ, However,
there is a note in the drawings stating that protection should be provided for the splicing reinforcement
to be extended with the columns floor level to be done by another Contractor. Can the Contractor claim
this reinforcement as variation? The Consultant claims that the note is sufficient and Contractor ought to
have priced it in his BoQ.
2. If the drawings shows 10 items but the Contractor only priced for 7. In case of an omission, is the
Consultant allowed to omit the value of 10 items in the drawings or only the 7 items priced? And does
the profits and overheads omitted in case of lump sum contract?
Thank you.
Reply
Written by Commented by Andy Hewitt, on March 07, 2017
Andy Hewitt, Hi Zait,
on March 07, 2017
Your two comments may be answered by considering what should be considered as forming the basis
of a lump sum contract. You would need to check the actual contract for this, but usually, the lump sum
is defined by what is shown on the drawings and described in the specification.
In your first example, I am not sure what ‘splicing reinforcement’ is, or how or why it should be
protected. The question you need to ask yourself is – is this reasonably shown or inferred on the
drawings or specification as part of your scope of works? If the answer is ‘yes’ then this should not be a
variation.
The second item is slightly more difficult. The drawings show 10 items, so 10 are included in the lump
sum price. The real question is, should the omission be evaluated at 10 x the contract rate, or 7 x the
contract rate as included in the BoQ? Usually the contract says that variations should be evaluated at
the contracts rates and prices so, if I were the contractor, I would argue that the price should be used
rather than the rate.
In other words, the total price included in the BoQ for the items should be the maximum deduction.
I hope this helps.
Reply

Zait, Dear Andy,
on March 07, 2017
Thank you so much for the prompt and detailed response. You have given me a better
understanding of point number two and the best argument for my case.
In case of point number one;
The scope of the work for the Contractor is to construct the building up to the podium level,
which will be completed later up to the roof level by another contractor.
The (drawings & specifications) and BoQ forms part of the Contract document in that order of
priority.
The problem is, the Contract drawings only show the podium plan as there are no elevation
drawings that would have enabled the Contractor quantify the additional columns.
However. there is a note on the drawings that states;
– CONTRACTOR TO PROVIDE PROTECTION TO ALL

EXPOSED REINFORCEMENT BARS TO BE SPLICED
WITH REINFORCEMENT OF PHASE 3 VERTICAL
ELEMENTS”
In the shop drawing we received a comment stating;

“…These columns shall be extended beyond Pool Deck Level for Phase(3)..”.”
The Contractor considers this a variation as the columns were not included in the BOQ while
Consultant claims that the above note implied the columns should have been quantified.
My apologies for the detailed information.
I look forward to your response.
Thank you
Reply
Written by Commented by Vijay Singh, on November 09, 2017

Vijay Singh, Dear Andy,
I would like to comment on second part of your response. As per my understanding with the
Lump sum contract, the Omissions and additional works required to be reflected on Drawings
for permanent works, Omission is possible for the quantities which are existing on drawings, it
does’t matter what quantity(s) shown in BOQ.
for the items not shown in the drawings, but available in the BOQ and general Specification, I
believe Drawings should be read in conjunction with specification. So these items can’t be
omitted, as the never existed on Drawings.
Please provide your view on above.
Regards,
Vijay Singh
Reply

Zait, Dear Andy,
on March 07, 2017
In my first question, I had requested for advice as to whether the Contractor can claim for loss of profit
and overheads on omitted works in a lump sum Contract.
The FIDIC general conditions have not been amended in case of evaluation of variations.
Thank you once again.
Kind regards,
Reply
Written by Commented by Dean Slayford, on March 08, 2017

Dean Slayford, Hi Andy
on March 08, 2017
Interesting debate, I have had a similar situation previously, Item in the BoQ, not shown in drawings and
specifications, and the CA deducted the value. The contract has a specific clause in relation to checking
and taking ownership of the quants, indeed, he had amended tender quants.
The contractor accepted the argument, although the value was not excessive.
Would be interested in the two case studies please
Reply
Written by Commented by Michelle Munyanduki, on March 16, 2017

Michelle Munyanduki, very interesting had a similar case, Please share your case studies.
on March 16, 2017
Reply
Written by Commented by mohamad aldawamneh, on March 26, 2017

mohamad aldawamneh, Please send the case study and the fidic article.
on March 26, 2017
Reply
Written by Commented by Nina Hewitt, on March 26, 2017

Nina Hewitt, Hi Mohamad – We would be happy to share the case studies with you. Please check your
on March 26, 2017 email shortly.
Reply
Written by Commented by Geoffrey Beresford Hartwell, on March 26, 2017

Geoffrey Beresford May I, too, ask for the case studies and FIDIC article? arbitrator@computer.org
Hartwell,
on March 26, 2017
Reply
Written by Commented by Nina Hewitt, on April 02, 2017

Nina Hewitt, Hi Geoffrey – I’ll send the case studies across shortly. I know reference was made to a FIDIC
on April 02, 2017 article in another comment but only have the two case studies. Thanks, Nina.
Reply
Written by Commented by Abdulrahman Al Khaseeb, on April 03, 2017

Abdulrahman Al Khaseeb, very interesting had a similar case, Please share your case studies.
on April 03, 2017 Best Regards
Reply

Nina Hewitt, Hi Abdulrahman – I’ll email the case studies to you shortly. Thanks for your comment! Best
on April 03, 2017 wishes, Nina.
Reply
Written by Commented by Joey Quizzagan, on April 11, 2017
Joey Quizzagan, Hi Andy,
on April 11, 2017
Excellent answer. Could you please share the case studies?
Thank you.
Regards,
Joey
Reply

Nina Hewitt, Hi Joey – Thanks for your comment and for visiting our blog. I’ll send the case studies to you
on April 11, 2017 via email shortly. Thanks, Nina.
Reply
Written by Commented by M.Haneefa, on April 11, 2017

M.Haneefa, Good article,Could you please send me the two case studies
on April 11, 2017
Reply

Nina Hewitt, Hi – Thanks for your comment, I’ll send the case studies to you via email shortly. Thanks,
on April 11, 2017 Nina.
Reply
Written by Commented by Leslie Foster, on April 11, 2017

Leslie Foster, Thanks. I would really appreciate a copy of the 2 case studies as referred.
on April 11, 2017
Reply
Written by Commented by Martyn Macari, on April 17, 2017

Martyn Macari, I would be grateful if you could share the case studies with me.
on April 17, 2017
Reply

Nina Hewitt, Hi Martyn – thanks for your comment and interest in the case studies. I’ll send them across to
on April 18, 2017 you shortly.
Reply
Written by Commented by Tessa matus, on April 19, 2017

Tessa matus, Could you please send me the case study. I am working with an Engineer who forgot to include a
on April 19, 2017 topping slab for fingers of a pier he was building as it was required to put stamp Crete a finishing
product. Finally the client decided to be reasonable and pay for the topping slab out of good will.
However they threatened not to pay because it was an error made by the Contractor. There is no
written contract in this job.
Reply
Written by Commented by Ricardo Salvador, on May 11, 2017

Ricardo Salvador, I would like to request for the 2 case studies mentioned in the article. I am a resident engineer in a road
on May 11, 2017 project in Azerbaijan and I have a case where an item of work is mentioned (formation level) as to be
paid and referred to the BoQ, which does not have this item. Thank you for a very informative website.
Reply
Written by Commented by A Layman, on May 11, 2017

A Layman, @Ricardo; If the work was expected and was done, or goods supplied as indicated in the
on May 11, 2017 Contract, then, of course, the Contractor must be paid. It is value had and received. If it is not
listed in a BoQ, then it should be valued according to a comparable price or rate. If there is no
comparable in the Contract then it must be valued as a quantum meruit.
Reply
Written by Commented by Yen Hock, on May 18, 2017

Yen Hock, Hi, kindly let me have the 2 case studies you mentioned above. Recently encountered a contractor who
on May 18, 2017 had tendered and accepted a project for a fixed lump sum. However, when the contractor completed the
1st phase of the project, the contractor found out that he had failed to take into account certain
requirement of the employer. The contractor is now in quite a mess because those requirements will
require him to top up quite a big sum to cover it.
Reply
Written by Commented by A Layman, on May 21, 2017

A Layman, I don’t give legal advice but unless you made it clear that the requirements were not to be met
on May 21, 2017 by your tender – that is arguably a counter=offer – you may have to seek the goodwill of the
employer.
Reply
Written by Commented by Manoj, on May 27, 2017

Manoj, Hi..
on May 27, 2017 very interesting had a similar case, Please share your case studies thru my email.
jmprasanthan@gmail.com
Best Regards
Manoj
Reply
Written by Commented by Manoj, on May 27, 2017

Manoj, Hi..
on May 27, 2017
Could you please share your case studies thru my email –
jmprasanthan@gmail.com
Regards
Manoj
Reply
Written by Commented by Nina Hewitt, on May 31, 2017

Nina Hewitt, Hi Manoj – please check your inbox for the case studies. I hope they come in useful for you.
on May 31, 2017
Reply
Written by Commented by Mohammed Fakhri, on May 30, 2017

Mohammed Fakhri, Good Day
on May 30, 2017
Would really appreciate if you can share the above mentioned case studies.
Many Thanks
Mohammed
Reply

Nina Hewitt, Hi Mohammed – please check your inbox for the case studies. I hope they come in useful for
on May 31, 2017 you.
Reply
Written by Commented by Thameem, on May 31, 2017

Thameem, HI,
on May 31, 2017
Please send me the case study to thameem-ansari@outlook.com.
Regards,
Thameem
Reply

Nina Hewitt, Hi Thameem – please check your inbox for the case studies. I hope they come in useful for
on May 31, 2017 you.
Reply
Written by Commented by zait, on May 31, 2017

zait, Hello,
on May 31, 2017
Could you please assist with the two case studies?
Thank you.
Reply
Written by Commented by Nina Hewitt, on June 01, 2017

Nina Hewitt, Hi Zait – please check your inbox for the case studies. I hope they come in useful for you.
on June 01, 2017
Reply
Written by Commented by AITSI Mohamed, on June 03, 2017

AITSI Mohamed, HI,
on June 03, 2017
Could you please send me the case study to aitsimohamed@gmail.com
Best Regards,
Mohamed
Reply

Nina Hewitt, Hi Mohamed – thanks for your comment. We’ve sent you the case studies!
on June 18, 2017
Reply
Written by Commented by Nick Sherry, on June 11, 2017

Nick Sherry, Hello,
on June 11, 2017
The blog was very interesting and informative.
Can you provide me with the case studies please.
Thank you
Reply

Nina Hewitt, Hi Nick – thanks for your comment. We’ve sent you the case studies!
on June 18, 2017
Reply
Written by Commented by Naga Sunil, on June 12, 2017

Naga Sunil, Hi,
on June 12, 2017 This is really interesting topic and largely debated in many projects. Would like to see the case studies.
Share me on nagasunil12345@gmail.com.
Thanks in advance.
Reply

Nina Hewitt, Hi Naga – thanks for your comment. We’ve sent you the case studies!
on June 18, 2017
Reply
Written by Commented by Victor Andres, on June 24, 2017

Victor Andres, It would be appreciated if you can share the two case studies on this topic.
on June 24, 2017
Thanks and best regards
Reply

Nina Hewitt, Hi Victor – thanks for your comment, I’ve just sent the case studies across to you. Best wishes,
on June 27, 2017 Nina.
Reply
Written by Commented by Hanim, on July 13, 2017

Hanim, Hi there,
on July 13, 2017 This is a really good read. Can I please request for the 2 case studies. Thanks.
Reply
Written by Commented by Nina Hewitt, on July 14, 2017

Nina Hewitt, Hi Hanim – thanks for your comment; pleased to hear that you’ve enjoyed reading our blog. I’ll
on July 14, 2017 send the case studies to you via email. Regards, Nina (GM – Claims Class).
Reply
Written by Commented by Ali Elbanhawy, on August 07, 2017

Ali Elbanhawy, Hi. The BOQ of a lump sum contract states that the Contractor has to provide a car with driver for the
on August 07, 2017 use of the PM during the construction period. There is no rate against this item. There is nothing
mentioned in the specs about this car. Can the employer omit this item in the middle of the construction
period and deduct an estimated amount from the beginning to the end of construction period?
Thanks.
Reply
Written by Commented by Nina Hewitt, on August 07, 2017

Nina Hewitt, Hi Ali,
on August 07, 2017
The important thing to consider here is what the contractor has agreed to do as part of his
contract.
If the bill of quantities is a contract document, then the contractor has agreed to and is obliged
to provide a car and driver for the duration of the construction period.
If the employer has decided that the car and driver is not required and the contractor has not
provided them, the employer can omit this item from the contract and the lump sum price
should be adjusted accordingly.
As this item is not priced separately, the amount of the adjustment should be calculated based
on the reasonable cost of providing a suitable vehicle and driver. Obviously this will be
subjective, so it will be necessary to use common sense here. The period used for the
calculation would be the duration of the construction period, because this is the period that the
contractor agreed to provide the car and driver for when entering into the contract.
I hope this helps.
Reply
Written by
Ali Elbanhawy,
on August 07, 2017
Commented by Ali Elbanhawy, on August 07, 2017
Thank you very much Nina.
Reply
Written by Commented by Muhammad, on August 10, 2017

Muhammad, Hi There,
on August 10, 2017
This is very interesting, could you please send me the case studies to enggwaleed@gmail.com
Best Regards,
Muhammad
Reply
Written by Commented by Shamilka Pananwala, on August 14, 2017
Shamilka Pananwala, Hi Andy,
on August 14, 2017
This is very common scenario in terms of Lump Sum contract.
Please share your case studies.
Reply

Nina Hewitt, Hi Shamilka – thanks for your comment. We’ll get the case studies out to you shortly.
on August 14, 2017
Reply
Written by Commented by MOHAMMED IBRAHIM, on August 29, 2017

MOHAMMED IBRAHIM, This discussion is really interesting and has enhanced my knowledge thanks to all the participants. In
on August 29, 2017 our project (based on a Lump Sum Contract) the owner omitted one of the buildings out of 7 buildings in
the contract, the omitted building was priced in separate BOQ as all the buildings priced in separate
BoQ for each building. Preliminaries/General requirements for the whole project is priced in separate
bill. My question is what will be the liability/impact of this omission to the Contractor? Contract is based
on FIDIC (Clause 51 and 52 quoted by the Owner). Please give me your advice.
Moreover please can you provide me the above said two case studies which will help me a lot.
Thank you.
Reply

Nina Hewitt, Hi Mohammed – Thanks for your comment and for reading our blog. I’d be happy to send the
on August 30, 2017 case studies to you and you will receive them shortly. I’ll leave it to the other comment
participants to provide advice on your enquiry. Regards, Nina.
Reply
Written by Commented by A Layman, on August 30, 2017

A Layman, @Mohammed
on August 30, 2017 In my [Engineer’s] opinion, if the 7th building was part of the contract price and omitted, one
would expect the contractor to receive any lost profit. If it was no more than an option, then
nothing is due unless the contract says otherwise. Any preparatory work should be paid.
Reply
Written by
MOHAMMED IBRAHIM,
Commented by MOHAMMED IBRAHIM, on September 02, 2017
Hi A Layman,
Thanks for your comments. in our case no work has been started.
Reply
Written by Commented by Amy, on September 08, 2017

Amy, When concluding a FA on a Lump Sum contract, what are the rules when drawings are changed and
on September 08, 2017 items removed from a Contractor’s package please?
The BoQ stipulates a total meterage which is not a true reflection on the site installation. The Client will
not pay for the extra measure, but is wanting to deduct quantities for the design change.
My head is hurting on this miserable Friday morning so would really appreciate some advice please.
Reply
Written by Commented by Ali Elbanhawy, on September 10, 2017

Ali Elbanhawy, Dear Nina,
on September 10, 2017 First of all I really appreciate the great efforts in your blog and thank you and thanks to all participants
for considering all questions.
After opening the technical and financial envelopes of the tender of a lump sum contract and during the
negotiations with the Contractor it was agreed to pay part of the contract sum in hard currency and the
Contractor was instructed by the employer to submit a new BOQ reflecting this. In the new BOQ which
was approved by the Employer the Contractor added “additional items”, which was allowed in the
original BOQ to cover any missing items or low quantities. My questions are:
1- If the Contractor refuses to provide more details of why he added those items and where they are
going to be used, giving a reason that this is a lump sum Contract and not a re-measured Contract. Can
the supervision Consultant insist that the Contractor submit details of those items?
2- Can the Employer omit any item of those additioal items if the quantity in the shop drawings is within
the original BOQ quantities?
3- If the Contractor was required in the tender documents to make a bypass of service lines of a specific
route and the quantities of that bypass were detailed in the BOQ, and it was decided during
construction stage with the supervision consultant agreement to make a much shorter bypass using
existing pipes and cables which will fit the purpose, can the employer omit the unused quantities?
Your advice is much appreciated

Regards
Reply
Written by Commented by Nina Hewitt, on September 11, 2017

Nina Hewitt, Hi Ali – thanks for your comment and I’m pleased that you are enjoying the blog. I’ve passed
on September 11, 2017 your comment onto Andy for a response and I’m sure some of our other commenters will
weigh in too.
Reply
Written by Commented by A Layman, on September 11, 2017

A Layman, To Ali Elbanhawy, may I say that the intention of the Contract is that the Employer should
on September 11, 2017 receive pay for the goods and labour at a price agreed with the Contractor? If there is more to
the works he should pay more; if less, less. In a Lump Sum Contract, the BOQ is to enable
progress and any variations to be valued,
If I may say so, a Contractor who doesn’t explain or account for unspecified additional items,
the Employer, not knowing about them, might not pay for them. It’s a risk you take.
Reply
Written by
Ali Elbanhaway,
Commented by Ali Elbanhaway, on September 18, 2017
Thank you very much for this clear explanation.
So as a Consultant I will omit the Contractor additional items which I do not have details about
them from the Contractor. Also, the unused lengths of pipes and cables because of making a
shorter bypass will be omitted.
Thanks again
Reply
Written by Commented by Maher Almadani, on September 11, 2017

Maher Almadani, Thank you, and appreciate your prompt response, however, I would prefer to receive the case studies
on September 11, 2017 by Email, for future reference.
Reply

Nina Hewitt, Hi Maher – Good to hear from you again. Hope you have been well since we met in Abu
on September 17, 2017 Dhabi. Sorry for the delay on getting the case studies to you, I’ve been on holiday. I’ve just
sent them via email. Regards, Nina.
Reply
Written by Commented by Mohamed Yahya, on September 16, 2017

Mohamed Yahya, Well detailed clarification for a common problem.
on September 16, 2017 I am very interested in reading the case studies.
Regards,
Reply

Nina Hewitt, Hi Mohamed – thank you for your comment, I have sent the case studies via email. Regards,
on September 17, 2017 Nina.
Reply
Written by Commented by Laurens Jogren, on September 19, 2017

Laurens Jogren, Very interesting topic and article. Even happening so often, it is not easy to find clear commentary or
on September 19, 2017 legal analysis about omitted works. I would be delighted if you share the case studies please. Thank
you very much
Reply

Nina Hewitt, Hi Laurens – thanks for your comment and pleased that you enjoyed the article. I’ve just sent
on September 20, 2017 the case studies to you via email. Regards, Nina.
Reply
Written by Commented by A Layman, on September 20, 2017

A Layman, In my opinion, omitted works are a factual rather than a legal matter:
on September 20, 2017 Are there items in the scope of the Contract that were omitted?
Were they omitted by instruction or agreement – if not, why?
Have any goods or labour been expended on the omitted Items?
Can it be shown that profit would have been made and is now lost?
Those seem to be the questions to be answered – preferably by evidence rather than
argument.
Reply
Written by Commented by lina zureikat, on September 24, 2017

lina zureikat, Dear Andy,
Could you share your case studies concerning the subject.
Sincerely,
Lina
Reply

Nina Hewitt, Hi Lina – thanks for your comment; I’ll send the case studies via email shortly. Regards, Nina.
Reply
Written by Commented by Judy, on October 16, 2017

Judy, Very detailed explanation. Could you perhaps send the case studies to me.
on October 16, 2017
Reply
Written by Commented by Nina Hewitt, on October 17, 2017

Nina Hewitt, Hi Judy – thanks for your comment, I’ll send the case studies shortly. Regards, Nina.
on October 17, 2017
Reply
Written by Commented by Mazen, on October 20, 2017

Mazen, Common issue and clear explanation. Thanks Andy.
on October 20, 2017
I’m interested in reading the case studies.
Reply

Nina Hewitt, Hi Mazen – thanks for your comment. I’ll send the case studies to you shortly. Regards, Nina.
on October 21, 2017
Reply
Written by Commented by Shaiful Bahrin, on October 23, 2017

Shaiful Bahrin, Quite an interesting topic and informative debate by others with similar experience in handling this,
on October 23, 2017 which I personally have same issued in hand.
I would like to receive the case studies in order to understand further on this
Reply

Nina Hewitt, Hi Shaiful – thanks for your comment, I’m pleased the article has been useful for you. I’ll send
on October 23, 2017 the case studies across shortly. Regards, Nina.
Reply
Written by Commented by Hazem Ali, on October 24, 2017

Hazem Ali, This a very helpful, informative and interesting blog.
on October 24, 2017
Appreciate sending me the case studies please
Reply

Nina Hewitt, Hi Hazem – Pleased that you have enjoyed the blog. I’ll send the case studies to you shortly
on October 25, 2017 via email. Regards, Nina.
Reply
Written by Commented by Magdy, on October 30, 2017

Magdy, Please share the case study
on October 30, 2017
Reply

Nina Hewitt, Hi Magdy – thanks for your comments, I’ll share the case studies with you via email shortly.
on October 31, 2017 Regards, Nina.
Reply
Written by Commented by Mircea Tenovici, on November 11, 2017

Mircea Tenovici, Common but evergreen matter in the industry.
May I also have the case studies, please…?
Thanks!
Reply
Written by Commented by Nina Hewitt, on November 12, 2017

Nina Hewitt, Hi Mircea – of course, I’ll send via email shortly. Thanks for commenting! Nina.
Reply
Written by Commented by Aysel, on November 13, 2017

Aysel, Hi, can I have both case studies please?
Reply

Nina Hewitt, Hi Aysel – yes of course, I’ll send via email shortly. Thanks for your comment, Nina.
Reply
Written by Commented by Faisal, on November 23, 2017

Faisal, Hi, I just found this website, and it’s very informative. Can I have both case studies please? Thanks
Reply

Nina Hewitt, Hi Faisal – thanks for your comment. I’m currently on leave without access to my laptop. I’ll
on November 29, 2017 send the case studies to you after 4th Dec when I return. Thanks, Nina.
Reply
Written by Commented by Adel Saber, on December 03, 2017

Adel Saber, I would like to review the case study.
Thanks a lot.
Reply
Written by Commented by Nina Hewitt, on December 05, 2017

Nina Hewitt, Hi Adel – apologies for the delay, I’ve just returned from holiday. I’ll issue the case studies via
on December 05, 2017 email shortly. Thanks, Nina.
Reply
Written by Commented by Ahmed Hamdi, on December 03, 2017

Ahmed Hamdi, Could you share your 2 case studies related to this topic?
Thanks in advance.
Reply

Nina Hewitt, Hi Ahmed – apologies for the delay, I’ve just returned from holiday. I’ll issue the case studies
on December 05, 2017 via email shortly. Thanks, Nina.
Reply
Written by Commented by selam, on December 06, 2017

selam, Hi, I have found the blog interesting and informative. Can you provide me the the 2 case studies?
thank you
Reply

Nina Hewitt, Hi Selam – pleased to hear that you’re enjoying reading our blog. I’ll send the case studies to
on December 10, 2017 you via email shortly. Thanks, Nina.
Reply
Written by Commented by Sandeep, on December 09, 2017

Sandeep, Hello Nina,
Thank you for publishing this article. I realized that this is indeed most common dispute that arises in
every project. I am also facing the same problem.
Hence could you please be kind enough sending me the case studies please? so that I can refer and
look on how to take it forward.
Thank you
Sandeep
Reply

Nina Hewitt, Hi Sandeep – sure, no problem, I’ll send the case studies via email shortly. Thanks, Nina.
Reply
Written by Commented by Akila wijesooriya, on December 21, 2017

Akila wijesooriya, Extremely valuable article. Please send me the two case studies
Reply

Nina Hewitt,
on December 21, 2017 Hi Akila – thanks for your kind comment. I’ll send the case studies to you shortly. Regards,
Nina.
Reply

Akila wijesooriya, First of all i would thank for replying and sharing the case studies .
I refered and it added knowledge but i didnt able to find the answer for my problem.(lump sum contract
designed by the employer -fidic 99)
Problem- the contract drawings mentions 100mm sand binding and spec notes maximum 150mm sand
binding and boq 50mm sandbinding description is there but no for 100mm. No question that it is a lump
sum contract we the Contractor is obligated to execute contract drawings and specification as per
priority of documents.
Then employer issues new drawings and engineer instructs for the variation to submit the qty
variation.as per new drawings additionaly 100mm sandbinding is given for new areas or beyond the
contract drawings.at the moment no rate for 100mm sand binding. And engineer ask to performthe
additional areas to 50mm sand binding.
I need guidance to facilitate my argument. My answer is no.we are not suppose no suffer for the
mistakes in addition beyond the contract drawings and moreover my view is no rate is given for 100mm
sand binding.50mm sand binding is an guideline we suppose to use as per the condition ofcontract
were it is an evaluation guidline. So please mention your comments and how to derive the rate for
100mm.is it that we should substatiate a new rate or derive from 50mm i think it is more
convineant.what is the entitlement in contactors point of view
Reply
Written by Commented by Vijay, on December 22, 2017

Vijay, BOQ doesn’t define the scope, and drawings needed to be read in conjunction with the
on December 22, 2017 specific specifications/ relevant specification, in above case no variation to be issued as the
Contractor doesn’t clarify the ambiguity during tender stage. the BOQ is having rate for 50 mm
or 150 mm, doesn’t matter as work needed to be as per drawings, even if BOQ does not have
item, the contractor have obligation to execute such work.
Reply
Written by
Akila wijesooriya,
Commented by Akila wijesooriya, on December 22, 2017
Yeah true and it is the obligation of contractor to execute in drawings irespective to the boq.no
argument in it. But my question is when client add the scope or expand the scope does the
contractor have to execute under a mistake under taken in tender stage .
Reply
Written by Commented by A Layman, on December 22, 2017

A Layman, I concur with Vijay in that Akila appears to have no rate for the work actually carried out (to be carried
on December 22, 2017 out?). A new rate must be agreed with the engineer. It could be discussed with the DAB if it’s in place.
Does the job warrant 100 mm or 150 mm? This question preeminently is not a legal question but a
commonsense one. If the spec or notes say 150 mm Maximum, that seems to be a boundary, a limit for
the nominal 100 mm of the drawing
Doesn’t Akila say to the Engineer, ‘Tell me what you want and I’ll price it.” Arguably that would be based
on time and materials. If the BoQ differs, tant pis!
Reply

Akila wijesooriya, Exactly that is my point of view and u have got it right laymen . (There is a limit for a mistake,
on December 24, 2017 and the mistake is clearly seen where no rate for 100mm in Contract). If we the Contractor has
identified the matter regarding the Contradicton in drawings and BOQ he should be obligated
to adjust it and make changes in BOQ as per Spec and Drawings. The Mistake has been done
and the Punishment is over. A new rate should be derived . Than you
Reply
Written by Commented by Allan, on January 24, 2018

Allan, Hi. Would appreciate if can email the case study. I have similar conditions here where Quantity of
on January 24, 2018 earthworks in BOQ is less than actual needed for in a Lump sump contract resulting the contractor
attempting to claim the difference.
Thank you
Allan
Reply

Nina Hewitt, Hi Allan – thanks for your comment and interest in the case studies. I’ll issue them via email
on January 24, 2018 shortly. Regards, Nina.
Reply
Written by Commented by Isam, on January 26, 2018

Isam, The quantity of a structural element in precast concrete was far greater than that shown on the
on January 26, 2018 drawings. Ultimately, it was constructed as cast-in-situ for which a rate was available on the lump sum
FIDIC contract.
In assessing the variation, would the quantity under the precast concrete item be omitted in full or only
the actual quantity indicated on the drawings?
Also, I would appreciate a copy of the case studies.
Reply

Nina Hewitt, Hi Isam – thanks for your comment. Hopefully some of our readers can provide some
on January 28, 2018 guidance. I’ll send the case studies via email shortly. Regards, Nina.
Reply
Written by Commented by M.Haneefa, on January 29, 2018

M.Haneefa, @Isam The phrase to be highlighted “The quantity of a structural element in precast concrete”
on January 29, 2018 meaning there can be other elements still done as precast:
Case 1: If The item you are going to omit is unique and specifically quantity inserted and you
are changing to Insitu fund allocated to the item should be omitted regardless of the quantity.
Case 2: The item you are going to omit is part of other elements in which BoQ Quantity is
inserted; then All elements can be measured as per Tender drawing and equaled to the BoQ
Quantity and only the proportionate part of the quantity can be omitted as omission.
Check at the same time this changing the item requires any additional work to be required like
waterproofing, if so it should be added to scope to cover the cost.
Reply
Written by Commented by Nina Hewitt, on March 06, 2018

Nina Hewitt, Hi Isam,
on March 06, 2018
Response from Andy:
If I understand correctly:
It is a lump sum contract designed by the Employer

A structural precast concrete element was over-measured in the BoQ
The BoQ was stated as being an estimate only
The design changed the element from precast to insitu concrete
Remembering that the lump sum price includes for what is shown on the drawings, the
omission would be for the precast concrete measured from the contract drawings at the BoQ
rate.
The addition would be for insitu concrete measured and evaluated at the appropriate rates
from the BoQ.
What we must remember in situations where the contract BoQ does not accurately reflect the
contract design, is that in most cases, the Employer or his agents prepared the BoQ and thus
had the opportunity to do this accurately. If inaccuracies cause conflicts or ambiguities, the
interpretation must be the one most favourable to the Contractor. Check out the principle of
contra preferentem. Of course, engineers, who are often the parties responsible for preparing
the inaccurate BoQ’s will try to argue against this, but this principle is supported by law.
I hope this helps.
Reply
Written by Commented by Geoffrey Beresford Hartwell, on January 28, 2018

Geoffrey Beresford
Hartwell, @Isam Logically, what has happened is that a part only of the item has been built so that it would be
on January 28, 2018 appropriate to reduce the item accordingly. An alternative, allowing for the different method, would be
for Employer and Contractor to agree on the omission of the entire item and to add the actual value as
a new item.
The contract is to supply the item. Provided the quality is equivalent, the method of manufacture is up to
the Contractor.
But I’m no lawyer.
Reply
Written by Commented by Stephen Ng, on January 31, 2018

Stephen Ng, Dear Andy,
on January 31, 2018
Thank you. Could you please share the two case studies?
Stephen
Reply

Nina Hewitt, Hi Stephen – thanks for your comment. I’ll share the case studies via email shortly. Regards,
on January 31, 2018 Nina (for and on behalf of Andy).
Reply
Written by Commented by Eunice, on February 01, 2018

Eunice, Thank you bloggers!
on February 01, 2018 It’s a great help to all the QS who are facing the same scenario.
Disputes with the Clients in terms of Variations.
Reply
Written by Commented by Akila wijesooriya, on February 05, 2018

Akila wijesooriya, @isam, although the quantity is high/low your rate refers to the drawings or specification as it defines
on February 05, 2018 the scope and the priority in documents hierarchy is high. Since it is a lump sum contract the BoQ price
will not be omitted but for variation you should stick to drawings, compare them and seek out the
amount difference by relevant rates, e.g. insitu quantity in drawings. *insitu rate (with all conc reif
formwork etc.) amount – precast amount × rate. If you are on contractor’s side enjoy the higher quantity
mistake done by the consultant as it is a lump sum contract.
Reply
Written by Commented by M.Haneefa, on February 06, 2018

M.Haneefa, What if Drawing has the Quantity of Precast Concrete more than specified in the BOQ? You
on February 06, 2018 cannot omit more than specified in the BOQ Right?
Reply
Written by
Akila wijesooriya,
Commented by Akila wijesooriya, on February 06, 2018
@Haneefa
Whatsoever the quantity in BOQ the rate is referred to drawing/ specification qty. The
Contractor is obligated to refer drawings and specifications during tender stages and price as
per drawing qty because at the end of the day he has to execute as per drawing. Since
Omission are allowed in Contracts eg. Fidic 99 . Must see the particular conditions
Reply
Written by
M.Haneefa,
Commented by M.Haneefa, on February 06, 2018
Yes I agree that it is correct for one type of contract in Lump sum where BOQ is not part of
Contract. There are cases where BOQ is part of the contract and in that case we have to
approach differently…
Reply
Written by Commented by Nimisha Tomy, on February 05, 2018

Nimisha Tomy, Could you please share the case study with me regarding the above.
on February 05, 2018 Reply
Written by Commented by Nina Hewitt, on February 06, 2018

Nina Hewitt, Hi Nimisha – happy to share the case studies with you, I’ll email them across shortly. Regards,
on February 06, 2018 Nina.
Reply
Written by Commented by Mickd, on February 10, 2018

Mickd, Great discussion on lump sum contracts. On the subject of omitting works that were not performed
on February 10, 2018 and/or the omission qty is greater than that shown in the BOQ I find it hard to argue the “this is a lump
sum” position when invariably in Contracts:
1. There are Tender adjustment schedules or similar mechanisms in bidding docs that allow bidder to
price in / adjust BOQ’s in their bid that then become part of the contract, albeit perhaps lower in
precedence that drawings and/or specs;
2. the contract contains in the GTC or STC’s the right of Client to vary the works via Change
instructions e.g. additions and/or deletions.
3. In the case of Omission of Work not performed, as mentioned above, why should the Client pay for
Work that was never done, particularly if clearly shown on drawings and detailed in bills, but for
whatever reason the work was/is not to be executed under the contract.
It seems quite often the Client just exercises his right to vary the works and issues an instruction to omit
that portion of the Works.
I’m not sure I’m seeing anything in the above discussion that would fully counter the Client exercising
this right.”This is a lump sum” doesn’t seem to swing it for me?
Appreciate your thoughts.
Would also appreciate a copy of the 2 x case studies.

K.R.
mickd
Reply

Nina Hewitt, Hi Mickd – thanks for your comment, I’m sure our readers will provide some use advice /
on February 11, 2018 insight for you. In the meantime, I’ll get those case studies across to you. Regards, Nina.
Reply
Written by Commented by Arjen generalao, on February 21, 2018

Arjen generalao, Someone here can give me an advice? Wat happened in my case is this there are item
on February 21, 2018 exceeded its quantity according to the given bill of quantities e.g Bill of quanties Item 311 –
2,816 sq.m actual 1,816sq.m only
Reply
Written by Commented by Mohammed I Abusalih, on February 13, 2018

Mohammed I Abusalih, Very useful information, can you please share the two case studies?
Reply

Nina Hewitt, Hi Mohammed – pleased to hear that you’re enjoying the blog. I’ll be happy to send the case
on February 14, 2018 studies to you, please expect them in your inbox shortly. Regards, Nina.
Reply
Written by Commented by Ali Elbanhawy, on February 14, 2018

Ali Elbanhawy, Hello Nina,
In a lump sum Contract there is an item which is priced extremely high (ten times the market rate) in
one of the two buildings in the project. For a similar item in the other building the unit is entered wrongly
by the designer as “number” not “meter” as should be and it does not make sense to use it. We want to
carry out a similar item as a variation. Can we ignore the excessively high rate and use a new rate?
Reply
Nina Hewitt, Hi Ali – thanks for your comment. I’ll ask Andy to provide a response. Regards, Nina.
Reply
Written by Commented by Arjen generalao, on February 21, 2018

Arjen generalao, Can anyone here give me some advice? What happened in my case is that there are items exceeded
on February 21, 2018 its quantity according to the given bill of quantities e.g Bill of quanties Item 311 – 2,816 sq.m actual
1,816sq.m only
Reply
Written by Commented by Elly Grace, on February 23, 2018

Elly Grace, the Contractor is claiming extra cost associated to leveling substrate. Tender site walk was not able to
on February 23, 2018 identify what’s underneath the existing flooring. But the drawings have notes basically tell the
Contractor to level the substrate after demo of existing flooring. Contractor claims site conditions is
beyond industry standard. Owner is not willing to pay any additional fees. Is the contractor entitled to
claim extra?
Please share the two case studies.
Reply
Written by Commented by Mickd, on February 24, 2018

Mickd, Elly, here’s my thoughts:
1. In the first instance unless the “industry standard” is part of the Contract then the Contractor
has contracted to level the substrate as part of his lump sum, and therefore not entitled to
additional costs.
2. Having said that, if a tender site walk was undertaken in which the parties attempted to
ascertain the extent of leveling but were unable to do so, and as such the Contractor had to
make an assumption and in doing so used the “industry standard”, if any such measure exists,
then perhaps the Contractor could pursue a claim on an ex-gratia basis for additional works
not contemplated by the parties, provided the Contractor can demonstrate that such was
clearly in suficient excess to be beyond the reasonable assumption of the parties. In any case,
put it on the table for further discussion during final account.
Reply

A Layman, Q.to Elly Grace, Did the Contractor make any reservation in the Tender?
on February 23, 2018 Is the work materially different from anything that reasonably could have been inferred from such
inspection as could have been made in the time allowed before tendering?
For any entitlement to an extra price, I think the answers to both questions must be ‘Yes’.
Reply
Written by Commented by Jade, on February 27, 2018

Jade, Interesting debate, can you please share the two case studies?
Reply

Nina Hewitt, Hi Jade – thanks for your comment. Happy to share the case studies with you; I’ll issue both
on February 27, 2018 via email shortly. Regards, Nina.
Reply
Written by Commented by Jade, on February 28, 2018

Jade, Thank you Nina.
I understand that the quantities in the BoQ may be estimates only, but that does not necessarily mean
that the BoQ itself does not detail scope.
Say: the BoQ has an item / items for dewatering and these are priced by the Contractor. However, the
GI details show that dewatering will not be required at all.
Can the Engineer issue an instruction omitting the dewartering item?
The relevant documents are equal in this case.
Thanks to all for comments.
Reply
Written by Commented by Andy Hewitt, on March 01, 2018
Andy Hewitt, In reply to Ali Elbanhawy’s post of 14 February.
on March 01, 2018 Sorry for the delay, but I was in Norway conducting a training course.
I think I am correct in assuming that you are working on the consultant’s side of the fence and that
therefore, you do not wish to pay what you consider to be an exorbitantly high rate for a variation. I have
a few observations to make on this matter.
Firstly, why did the party responsible for tender evaluations not pick this up before the contract was
entered into? Any half-competent cost consultant would have performed a comparison of at least the
three most competitive tenders to identify things like this. Had this exercise been carried out, the rate
could have been negotiated and replaced by something more realistic. I fear that this is another
example of taking short cuts or saving money when finalising the contract, which come back to bite the
parties during the execution stage and could conceivably cost the Employer a significant amount of
money.
Secondly, if we take the FIDIC Red book as an example of how variations should be evaluated, Sub-
Clause 13.3 (Variation Procedure) directs us to evaluate variations in accordance with Clause 12
(Measurement and Evaluation). Sub-Clause 12.3 (Evaluation) states ‘For each items of work, the
appropriate rate or price for the item shall be the rate or price specified for such item in the Contract’, so
it looks as though you will have to use the rate that ‘is extremely high’ for the evaluation.
Thirdly, FIDIC does provide a get out clause in some circumstances and Sub-Clause 12.3 (Evaluation)
goes on to say ‘However, a new rate or price shall be appropriate for an item of work if: ….’ FIDIC then
provides a list of circumstances that may allow a new rate or price to be used. From the information
provided, I can’t tell which conditions may apply, but on the face of it sub-paragraph (b) seems to
indicate that you cannot change the rate even though although this is a variation, because there is a
rate specified in the Contract and the work is likely to be of similar character and executed under similar
conditions.
Fourthly, as a consultant, please ask yourself how you would react to a contractor who asked for extra
money because he significantly under-priced something.
I hope this helps.

Andy
Reply
Written by Commented by Ali Elbanhawy, on March 05, 2018

Ali Elbanhawy, Dear Andy,
on March 05, 2018 Thank you very much for the clear and comprehensive answer. Yes, I am the Consulted
appointed at a late stage after the first Consultant was terminated. I fully agree with your
second paragraph. We got now all kinds of problems from what happened before signing the
Contract.
I will check FIDIC to find out the appropriate sub-para and will also try with the Contractor to
reach to an agreement with him on a reasonable rate.
Thanks again.
Reply

Ali Elbanhawy, In a lump sum contract a rectangular area is shown with two border lines without any specifications. will
on March 03, 2018 the contractor be entitled for cost of a stainless steel fence as required by the supervision consultant
around that area?
Reply
Written by Commented by A Layman, on March 05, 2018

A Layman, Why is the fence of stainless steel? If nothing is specified, then an ordinary stock design to a
on March 05, 2018 reasonable standard would surely have sufficed,
Reply
Written by
Ali Elbanhawy,
on March 06, 2018
Commented by Ali Elbanhawy, on March 06, 2018
Stainless steel has been used because there is an item for it in the BOQ and to match
adjacent/nearby building façade as explained by the supervision Consultant.
Reply
Written by Commented by Joy varghese, on March 04, 2018

Joy varghese, The contractor is not entitled for additional cost unless he has qualified during the tender and priced and
on March 04, 2018 included as stainless steel fence in the bq
Reply
Written by Commented by Isam Saad Sahawneh, on March 05, 2018

Isam Saad Sahawneh, I would be truly grateful for Mr. Hewitt’s feedback to my January 26, 2018 query. And I thank all who
on March 05, 2018 have contributed comments.
Reply

Ali Elbanhawy, The Contractor made the stainless steel fence with glass as instructed by the Consultant and he is now
on March 06, 2018 claiming its cost as part of the variation of other work in the same area. So, if that fence was supposed
to be of a more reasonable design what can we do? Pay the actual cost of the stainless steel fence and
deduct an estimated cost of the reasonable one?
Reply
Written by Commented by A Layman, on March 06, 2018

A Layman, To: Ali Elbanhawy. To add the price of the higher valued item and deduct the reasonable expectation
on March 06, 2018 would be correct, provided the Engineer knew or should have known he would be charged for the
betterment,
Reply
Written by Commented by Chauchee, on March 14, 2018

Chauchee, Both drawings and BOQ form part of the contract documents and so whichever stringent shall apply
on March 14, 2018 accordingly for a lump sum contract unless it specified/clarified during tender stage (recorded black and
white).
Reply
Written by Commented by Ram, on March 29, 2018

Ram, Hi,
on March 29, 2018
Could you please share the case study with me.
Thanks in advance
Regards
Ram
Reply
Written by Commented by John McGee, on April 10, 2018

John McGee, Dear Sir,
on April 10, 2018
I would appreciate it if you could share these case studies with me.
Thank you
Regards
John
Reply
Written by Commented by Shfulrizam, on April 15, 2018

Shfulrizam, Hi Sir,
on April 15, 2018
Your blog very interesting for me. The BoQ is usually stated in the contract to be an estimate, not to be
relied upon and only to be used for evaluating monthly progress and variations. I have further questions
on this matter:
Contract sum in BOQ rate based on lump sum (1 lot) without detail breakdown quantity and Unit Price.
For example: Cabling works – 1 lot – 1M.
But during additional and omission shall be based on Schedule of Unit Rate:
Due to overall design changes there was addition and omission breakdown to identify and submit the
cost to client.
The problems are:
1) Total contract amount 1M not same with detail breakdown with Schedule of unit rate (markup 50%)
and cost becomes 1.5M
2) The additional cost based on Schedule Unit Rate becomes 3M
3) Cost different based on schedule unit rate is 1.5M
4) But client insists to rationalise the unit rate to ensure tally as per Contract Sum of 1M.
What is the contractual view on this matter?
If Addition will profit side but omission is loss side.

If omission from Contract sum is 500K but based on Schedule of Unit Rate the omission is 750K.
What is your opinion?
Can you also share the case study with me please?
Regards,
Shful
Reply
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Please share the case study

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I have read your articles.

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Let me close by asking a question. On a lump sum contract, if something is shown