Just lately, I have noticed a growing tendency on the part of the Design team to use the existence of Provisional Sums in the original Bills as an excuse for rejection of the Subbie's claims for delay and loss and expense. The party line is based on a fond belief that such an inclusion, however vague, gives the Design team a licence to introduce as much additional work as they wish, and as late as they choose, on the basis that the Subbie "should have made due allowance in his tender". What super fun, chaps. Unfortunately, it's a load of baloney. So let us look at the true position.
Where a Bill has been prepared in accordance
with SMM7, the rules are very clear, and make good news for Subbies. Provisional Sums are to be classified in the bill as either
"Defined" or "Undefined".
If "Defined", then the Subbie is deemed to have made due
allowance in his programming, planning and pricing of Preliminaries. However,
the good news is that in order to qualify for the title of "Defined",
the Bill item shall give information about (a) the nature and construction of
the work (b) how and where the work is fixed to the building and hat other work
is fixed thereto (c) a quantity or quantities which indicate the scope and
extent of the work (d) any specific Employer's
limitations and requirements. If all this information is not given, then
the Provisional Sum does not qualify for the title of "Defined", even
if so described in the Bill.
Furthermore, even when properly "Defined" in the Bill, the
Subbie is still entitled to delay costs and extension of time, if appropriate,
in the event that the Design team is late with the issue of instructions for
which the Subbie applied in writing in reasonable time.
As to "Undefined" Provisional Sums,
the Standard Method states that the Subbie will be deemed not to have made any
tender allowance in programming, planning and pricing Preliminaries. Therefore,
as and when such sums are instructed, the work involved is, in effect, a
variation for "additional work", and the Subbie is therefore entitled
to his full entitlements as regards additional preliminaries (ie engineering
and supervision involvement etc) and appropriate extension of time and loss and
expense where this is merited by the nature, timing and volume of the work
involved. All this is spelled out in
Amendment 7 to DOM/1 (September 1989). Not bad, eh?
All this small print appears to have been lost
on the Architect who recently rejected my Subbie friend's claim for delay, even
though the sums were "Undefined" and he was happily issuing
information weeks after the end of the original sub-contract period. Don't worry, we shall make sure that justice
is done in due course!
So the moral is not to take everything the
Architect and/or PQS say to you as gospel, just because you're a humble
Subbie. The streetwise Subbie should
check things out for himself and then act accordingly. So cheer up, chaps!
Keynote:
Don't be conned by "Undefined"
Provisional Sums.
John
Russell
Contracts
and Training Consultant
Cheshire CW4 7DP
Tel: 07770 986444
Email:
swsubbie@globalnet.co.uk
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