In this contract the BOQ adopts CESMM4 including its preamble clauses. An item is shown on a tender drawing and carried forward into the construction drawings but is not in the bill.
The Contractor claims a new bill item having built this omitted item.
The Engineer considers that Clause 4.11 “Sufficiency of the Accepted Contract Amount” which links back to Clause 4.10© means the Contractor is deemed to have included for the missing item in his other rates. The Contractor therefore has no entitlement to a new bill item in the opinion of the Engineer.
The Engineer also notes that Clause 1.5 “Priority of documents” means that the drawings take precedence over the bill and therefore as the item is shown in the drawings it takes precedence over the incorrect bill.
The Contractor disagrees with this assessment for various reasons including a requirement via a bill preamble clause to specifically itemise work that is needed; plus Clause 1.5 clarification to be issued by Engineer in the case of ambiguities; plus the requirements of Clause 12.2(b) which points to the bill as method of measurement.
How does the FIDIC Red Book deal with an omitted bill of quantity item which has always been shown on the drawings?
Does this response change if the item in question that was omitted is varied in terms of its specification?
What circumstances is Clause 4.11 intended to cover in the context of a remeasureable Contract?