legal view 2. Where a works item is described in the BOQ but has not been included in the WR: (a) If the employer requires the contractor to complete those works, the contractor will have no entitlement to an adjustment in the contract sum. (b) If the employer decides not to complete the works item, the employer shall be entitled to a credit for that amount. 3. Where both the BOQ and the WR have a work item but there is a difference between the quantities in each document: (a) If the employer decides that the quantity in the WR must be completed, the contract sum will be adjusted. (b) If the employer directs the quantity in the BOQ is the one to be completed, the sum remains the same. The contractor must pay particular attention to the BOQ submitted with the tender documents and must price its tender based on those quantities and work descriptions as opposed to the WR. Bear in mind that risks which will not be compensated under Schedule Part 1 K shall override the Schedule Part 1 K 17 entitlement. For example, unforeseeable ground conditions – Schedule Part 1 K (19) – is deemed not to be a compensation event. If a discrepancy arises between the BOQ and the WR, in relation to unforeseeable ground conditions, then K 19 shall overrule K17 and no compensation shall arise. So for any risk items in Schedule Part 1 K which are not compensation events, the contractor must analyse same and consider how they are dealt with in the BOQ when assessing the tender price to submit. The overriding criteria for the contract will continue to be the lowest price/most economically advantageous tender 2 but the BOQ will be used as the document to evaluate those tender submissions. Once the lowest price/most economically advantageous tender has been identified by the employer, they must then assess the BOQ to ensure that the employer’s risks/interests are covered and that the prices submitted match the quality for the work items required. The BOQ will become the base document for evaluating any additions throughout the project, but also for evaluating works completed in relation to the interim payment applications/Payment Claim Notices.
Points for the contractor 1. Check that the BOQ has been prepared by a cost consultant.
Is it prepared correctly and in accordance with the specified rules of measurement? If not this matter should be raised with the employer and a properly measured bill should be obtained before any tender is submitted. 2. Has the BOQ been prepared with complete design information? The contractor should analyse the WR versus the description for the items in the BOQ to ensure that full information has been provided. If there are any anomalies or discrepancies at this point they should be raised and responded to before the contractor submits a price. The guidance note for CAs is very specific about the Employer’s obligations in relation to the preparation of the information required in order to input into the pricing document and, therefore, if this task is not properly carried out by the design team it may lead to an avenue for the contractor to claim fordiscrepancies against the employer at a later date. If a contractor calls for a check on the quantities during the contract and it
transpires there is no error/discrepancy then they will have to cover the Employer’s costs of carrying out the check. Contractors should engage a qualified quantity surveyor to assess the tender documents and assist with the tender price to be submitted. These amendments are unlikely to come into effect until January 2017 and it remains to be seen as to whether the design team will step up to the task of providing a complete set of designed out contract documents at tender stage. It is however, an important move on the part of the Government and perhaps a sign of an intention to redress the unfairness in these contracts and maybe to restore some proper risk allocation for construction projects in the future. C For further information on the Bill of Quantities / Pricing document or for any other general legal queries, contact Deirdre at email@example.com or on +353 1 6915478. www.byrnewallace.com
1 http://constructionprocurement.gov.ie/wp-content/uploads/GN_1.5.doc 2 Under the new EU Procurement Directives above threshold contracts can no longer be awarded on the basis of lowest price only
September 2016 CONSTRUCTION 61
News, Views and Analysis from the Construction Industry Federation in Ireland.