Thursday, September 3, 2009

Civil Engineering Measurement Disputes



Civil Engineering Measurement Disputes

John B Molloy, LLB (Hons), BSc (Hons), FHKIS, FRICS, MCIArb, FInstCES, RPS (QS), Managing Director, James R Knowles (Hong Kong) Limited

In building contracts, where Standard Methods of Measurement with mandatory rules are normal and quantity surveyors take considerable (some would say too much) time preparing accurate and detailed bills of quantities, disputes concerning measurement matters are quite rare. In civil engineering contracts, however, where the approach to bills of quantities has traditionally been somewhat more cavalier, claims based upon measurement matters have become more and more common, and are now, in my experience, one of the most common claims to be raised on civil engineering projects, particularly if the bills of quantities have been measured in accordance with the Government of Hong Kong Standard Method of Measurement for Civil Engineering Works. The Government of Hong Kong Standard Method of Measurement for Civil Engineering Works was first issued in 1986 (and has since been republished twice with only minor modifications) and it replaced the ICE Standard Method of Measurement 1954 Edition which remarkably was still in general use at that time. Claims deriving from this Standard Method of Measurement are principally that there are items omitted from or errors in description in the Bills of Quantities. These claims, made under General Conditions of Contract Clause 59(3): "...The Engineer shall correct any such error or omission, shall ascertain the value of the work actually carried out in accordance with Clause 61, and shall certify in accordance with Clause 79. generally fall into three types. Firstly - where there is a specific item in the Standard Method of Measurement which is required for the works but which has not been measured in the Bills of Quantities. Such claims are normally fairly clear cut and valid, based upon the wording of General Conditions of Contract Clause 59(1): "Except where any statement in the Bills of Quantities expressly shows to the contrary the Bills of Quantities shall be deemed to have been prepared and measurements shall be made according to the procedures set forth in the Method of Measurement stated in the Preambles to the Bills of Quantities." with Standard Method of Measurement Part II - General Principles paragraph 4: "Unless expressly stated otherwise in the Contract the Bills of Quantities are to contain all those items compounded in accordance with the foregoing paragraph 3 required to comprise the Works." and the case of A E Farr -v- Ministry of Transport (1977) 5BLR 94, where it was held that if the Standard Method of Measurement required measurement of an item that formed part of the works, such an item must be measured in the Bills of Quantities. Secondly - where there is a specific item in the Standard Method of Measurement which is required for the works and which has been measured in the Bills of Quantities, but is measured either with a different description or a different unit of measurement. Again such claims are normally fairly clear cut and valid, based upon the above reasoning.


However, to counter this, it is sometimes argued that the wording of the item in the Bills of Quantities itself is clear and amounts to an express statement that the Bills of Quantities have not been measured in accordance with the Standard Method of Measurement. I do not consider such a counter argument is valid because the Standard Method of Measurement requires at General Preamble paragraph 9 that wherever methods of measurement are adopted which are not in accordance with the Standard Method of Measurement such must be stated by way of a Particular Preamble, and not simply by measuring matters in a different manner in the Bills of Quantities. Thirdly - where works are required but there is no applicable item in the Standard Method of Measurement nor are the works covered by an 'item coverage' of another item. This is the most difficult situation. It is commonly argued by Engineers that the contractor should have allowed for such items because the General Preamble paragraph 2 provides, inter alia, that the rates inserted in the Bills of Quantities shall be deemed to be the full inclusive value of the work covered by the respective items including the following: "x) liabilities, obligations, and risks involved in the execution of the Works set forth or reasonably implied in the Contract." I do not believe that this is correct. The General Preambles, paragraph 2 items (i) to (xi) provide a list of general items, including the item above, and including such items as labour, plant and materials. It is my understanding that these are to be read as being included in the item coverage for each item in the Standard Method of Measurement, and that the General Preamble is simply a convenient way of saving the need to put items such as labour, plant and materials in each and every item coverage. What this means is that the general preamble items do not stand alone, they can only be read in conjunction with the items in the Standard Method of Measurement. Therefore where works are required, but there is no applicable item in the Standard Method of Measurement, it is not possible to allow for them by way of the General Preamble Items because there is no item in the Bills of Quantities to start with, i.e. no item to read the general preambles in conjunction with, with regard to the particular works concerned. Many of the problems which have arisen and which give rise to so many measurement claims have arisen because of Government's choice of the 'item coverage' system of Standard Method of Measurement. If the item in the Standard Method of Measurement simply said 'construct precast concrete manhole 1000mm in diameter x 2000mm deep as shown on drawing no.... then the contractor would have to allow for all matters necessary to construct the manhole. However, once the item coverage system is adopted, and a list of all the items which the contractor must allow for, e.g. concrete, formwork, reinforcement, etc, is included, if something is omitted from the list it automatically becomes an item omitted from the Bills of Quantities and a claim is formed. Had the Government adopted the more radical CESMM produced by the Institute of Civil Engineers (as the KCRC have done for their West Rail projects) rather than writing their own Standard Method of Measurement based upon the 'item coverage' system, then many of the item omitted claims, which are now so prevalent, would not arise. (Adopted from the HKIS Newsletter 9(8) September 2000)


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