An Analysis on Claims of Omitted Construction Items in Public Construction Contract Disputes
Date Issued
2015
Date
2015
Author(s)
Ye, Wun-Siang
Abstract
The government institutions in Taiwan conduct public construction through the government procurement procedure according to the Government Procurement Act and usually use the lump sum contract form. Often the contractor discovers the omitted item or quantities in the bill of quantities (the “BoQ”). The omission item of BoQ means that the lump sum contract described certain construction item in its drawings or specifications and which is omitted in the BoQ of the contract. Similarly, the omission quantity of BoQ means that the lump sum contract described certain construction quantities in its drawings or specifications and which are not completely put down in the BoQ of the contract. When the omission of the BoQ happens, the contractor may claim additional payment based on the omission of the BoQ (including the omission of BoQ item and quantity); in the other hand, the employer may decline to pay the additional payment based on the standard clause of the lump sum contract stated that the errors regarding items and quantities of the BoQ shall not be a ground for adjusting the contract price. The disputes regarding the construction claim on omission of the BoQ can be commonly found in the courts, arbitration institution and mediation procedures. However, the views and opinions of the different judges, arbitrators and scholars are divided on the claim issue and even contradictory. This paper studies the different views and opinions and analyzes the omission of the BoQ through different aspects such as the definition, court judgments and decisions, the clauses of the model agreement of the public construction procurement and the allocation rule on construction risk. This paper tends to think that, based on the model agreement of the public construction procurement, the claims regarding the additional payment on the omission of the BoQ should be reconsidered and conferred by both the employer and the contractor and be settled by the variations clauses of the agreement, lest the claims on the omission of the BoQ become the zero-sum games.
Subjects
Public Construction
Lump Sum Contract
Omission of the BoQ item
Omission of the BoQ Quantities
Government Procurement
Type
thesis