Fidic red book clause 12 & 13
Arjunsingh Saoji
(Querist) 19 March 2013
This query is : Resolved
Clause 12 is about Measurement & Evaluation whereas Clause 13 is for Variation and Adjustments. In 12.3 sub clauses (a) & (b)are included with "or". Will it mean that first (a) shall apply and if not then only recource to (b) shall be done. Are 12 & 13 mutually exclusive or to be read jointly.
prabhakar singh
(Expert) 19 March 2013
I have gone through the text referred by you
on
http://ebookbrowse.com/original-fidic-red-book-construction-contracts-mdb-harmonised-pdf-d88817436
Both are dealing different situations and do not have application on either /or basis.
My answer to your question "Will it mean that first (a) shall apply and if not then only recourse to (b) shall be done"IS IN NEGATIVE.
(a) shall apply WHERE CONDITIONS OF (a) EXISTS (b) shall apply WHERE CONDITIONS OF
(b)EXISTS.
Arjunsingh Saoji
(Querist) 19 March 2013
These are standard clauses and in any tender, these are subjected to changes in specific tender. In one of contract, employer adopted standard FIDIC clauses subject to specific changes adopted in tender documents. No change is done in standard clause of 12 but in clause 13.1, new sub clauses 13.1.1 & 13.1.2 are added.
In clause 12, following limitations conditions are provided
"However, a new rate or price shall be appropriate for an item work if (a) (i) measured quantity of item is changed by more than 25% from quantity of item in BOQ (ii) this change in quantity multiplied by specified rate exceeds 0.25% of contract value ...(iii)...(iv) etc etc" or (b).
Now new Clause 13.1.2 says Power of Engineer to fix Rates: And contains new limitation " Provided further that no change in the rate of price for any item shall be considered unless such item accounts for an amount more than 2% of contract value"
Employer agreed that they have wrongly mentioned very low quantity for one item due to typing mistake. Contractor has quoted very low rate for very low qty. But this item turn out to be very much excessive in qty to the extent of 1200% of original qty. But still it is not exceeding 2% value of contract at quoted rate. Engineer agreed to recommend case fo variation of rates but employer turned down after completion of work pointing out to clause 13.1.2. What can be possible remedies to put up case for arbitration.
Raj Kumar Makkad
(Expert) 20 March 2013
You can easily afford the charges of a lawyer of your area so engage him rather to raise your query at charity forum.
Arjunsingh Saoji
(Querist) 21 March 2013
I was not knowing that this forum is for charity, I though to initiate discussion for benefit of all.
My opinion may be noted on above point.
1. FIDIC designed and incorporated two distinct clauses in its RED BOOK First edition 1999 ISBN 2-88432-022-9 which is referred by Steering Committee while referring to the interpretation of these clauses. One of two clauses under discussions and review was clause No.12 – “ Measurement & Evaluation” and another was Clause No.13 – “Variations and Adjustments”. If both the clauses are dealing with changes in rates of item then “what was necessity of incorporating two distinct clauses separately?”. Let us first review clauses in General Conditions in FIDIC RED BOOK.
Clause No 12 has four sub clauses namely
12.1 Works to be measured
12.2 Method of Measurement
12.3 Evaluation
12.4 Omissions
Clause No 13 has Eight sub clauses namely
13.1 Right to vary
13.2 Value Engineering
13.3 Variation Procedures
13.4 Payment in applicable currencies
13.5 Provisional Sums
13.6 Daywork
13.7 Adjustments for changes in Legislation
13.8 Adjustments for changes in Cost
Our contention is that
clause 12 is meant for such changes in works which do not involve change in design, quality and other characteristics of any item of work. These are merely changes in measurement of quantities without involving basic characteristics of the item of work. If it is so, the new rates for extra quantities of any such items of work are to be evaluated as per provisions in clause 12 for arriving at new rates.
Whereas Clause No.13 is meant for such changes in works which do not involve change in design, quality and other characteristics of any item of work.
