Can a QS be held liable to a contractor for errors in BQ?

Under the PAM Form, any errors or omissions in the Contract Bills shall not vitiate the contract, but can be corrected by the Architect or Consultant. When such errors are corrected, they may affect the price of the contract, and dealt with as a variation (either addition or omission).

However, if a contract does not provide for correction of the Bills, an error in the BQ may lead to disputes as to whether the particular item is already included as part of the contract price. In Patman and Fotheringham v Pilditch, the test employed by the Courts seems to be whether the items were “obviously required”. If yes, then the court takes the view that such items should have already been costed in despite the item not being specifically set out as a line item in the BQ. In such an instance, the contractor then bears the cost of such item.

Older cases suggest that a contractor who ends up holding the shorter end of the stick due to errors in the BQ cannot claim against the QS for such errors, because the QS was engaged by either the employer or the architect and therefore would not be liable to the contractor per se (for instance, see Priestly v Stone).

However, that may not necessarily be good law today, as surely the QS as a professional would owe a duty of care to the contractor who would have relied on the BQ prepared by the QS in preparing its tender bid. That does not mean that the BQ prepared must be perfect, but it must at the very least mean that there must not be errors of the type and magnitude that would not be common amongst QS-s exercising reasonable care and skill.

Kheng Hoe Advocates represents contractors in arbitration, litigation, adjudication (CIPAA) and mediation of construction disputes. We can be reached at khenghoe@khenghoe.com.

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