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?
This question is very difficult to answer in the abstract as there are very many different permutations. You need to consider whether the work that was not in the bill but was on the drawing was clearly required to be carried out by this contractor or was it shown for information (as the contractor may take it where it is not then covered in the bill).
A starting point could be if it is not in the bill then you cannot (and don’t need to) price it but there are so many exceptions to that starting point as to make it less than helpful.
Clause 4.11 is, in my view, really trying to pick up things that are obvious requirements but might be omitted, so, for example, when erecting plasterboard partitions you would reference a square metre rate for plasterboard but that doesn’t mean the contractor can then claim, as an extra, tape or nails or other fixing and jointing unless there is some special detail needed.
This is one of those areas where you need to get into the detail to understand the position.
under FIDIC (red book) contract, according to my understanding, the contract is lump sum, subject to change/adjustment in the contract sum according to the actual quantities of works executed, following the contract specifications and the drawings. In other words, the scope of the contract work, is supposed to be well defined through the drawings and specifications. There can be a variation, only when a new item of work is ordered by the Engineer/Employer, not covered by the scope of work initially defined under the contract. But, if the work is covered under the initial scope of the contract, the work is to be executed through payment under the related bill items of the Contract.