Provisional sum
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[edit] What is a provisional sum?
A provisional sum is an allowance (or best guess), usually estimated by a cost consultant, that is inserted into tender documents for a specific element of the works that is not yet defined in enough detail for tenderers to accurately price.
In the case of Midland Expressway Ltd v Carillion Construction Ltd & Others, Court of Appeal Civil Division, 15 June 2006, Lord Justice May suggested that:
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The term 'provisional sum' is generally well understood in the construction industry. It is used in pricing construction contracts to refer either to work which is truly provisional, in the sense that it may or may not be carried out at all, or to work whose content is undefined, so that the parties decide not to try to price it accurately when they enter into their contract. A provisional sum is usually included as a round figure guess. It is included mathematically in the original contract price but the parties do not expect the initial round figure to be paid without adjustment. The contract usually provides expressly how it is to be dealt with. A common clause in substance provides for the provisional sum to be omitted and an appropriate valuation of the work actually carried out to be substituted for it. In this general sense, the term 'provisional sum' is close to a term of art but its precise meaning and effect depends on the terms of the individual contract. |
As provisional sums are replaced by valuations of the work actually done as the project progresses, the contract sum may increase or decrease.
NB Provisional sums should not be confused with prime cost sums. A prime cost sum is an allowance, usually calculated by the cost consultant, for the supply of work or materials to be provided by a sub-contractor or supplier that will be nominated by the client - that is, a sub-contractor or supplier that is selected by the client to carry out an element of the works and imposed on the main contractor. For more information see: The difference between a prime cost sum and a provisional sum.
[edit] Defined vs undefined provisional sums
Depending on the degree to which the works that the provisional sum relates to can be defined at the tender stage, the actual works that are undertaken may affect the contractor’s programming, planning and pricing preliminaries:
Defined provisional sums are those which have been described in sufficient detail that the contractor is expected to have made allowance for them in their programming, planning and pricing preliminaries. For more information, see Defined provisional sum.
Undefined provisional sums are less well described and so the contractor cannot be expected to make allowance for them in their programming, planning and pricing preliminaries. For more information, see Undefined provisional sum.
The New Rules of Measurement (NRM) published by the Royal Institute of Chartered Surveyors (RICS) suggest that works relating to a defined provisional sum should describe:
- The nature and construction of the work.
- A statement of how and where the work is fixed to the building and what other work is to be fixed thereto.
- A quantity or quantities that indicate the scope and extent of the work.
- Any specific limitations and the like.
If this information is not provided, NRM suggests the provisional sum is considered undefined, irrespective of what it is called in the tended documents.
[edit] Difficulties associated with provisional sums
Provisional sums are provided for in different ways in different forms of contract, and some forms of contract can be a little vague about how provisional sums should be handled, in particular regarding adjustments to the programme. There may also be issues if the employer decides to omit work related to a provisional sum from the contract, as the contractor may claim for loss of profit, unless the contract allows the work to be omitted. It is important therefore that parties to the contract familiarise themselves with the exact wording and meaning of the relevant clauses that are being used.
In addition, agreeing the actual costs associated with provisional sums or extensions of time that might be claimed can result in tension between the contractor and client.
For these reasons, provisional sums should only be used as a last resort, they should not be an easy fall-back position for consultants when designs are incomplete or information is difficult to obtain. The risks are significant enough that the NEC Engineering and Construction Contract (NEC3) does not have any allowance for provisional sums.
[edit] Examples of provisional sums
Examples of situations that might involve provisional sums might include:
- Uncertainties relating to ongoing planning applications.
- Earthworks where it has not been possible to carry out thorough ground investigations.
- Where works cannot be known until an existing structure is opened up or removed.
- Where innovative or specialist work is impossible to accurately price in advance.
[edit] Related articles on Designing Buildings
- Prime cost sum
- The difference between a prime cost sum and a provisional sum
- Preliminaries in construction
- Provisional quantity
- Bill of quantities BOQ
- Prime cost in construction contracts
- Architect's instruction
- Midland Expressway Ltd v Carillion Construction Ltd & Others
- Attendance for construction
- Contract sum
- Variations in construction contracts
- New Rules of Measurement
- Defined provisional sum
- Dayworks in construction
- Nominated sub-contractor
- Approximate bill of quantities
[edit] External references
- Expressway Ltd v Carillion Construction Ltd 2006 - the meaning of provisional sum.
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Comments
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Hi there!
Thanks for the informative articles about contracts.
I have few queries which need your further explanation:-
1. Is the provisional sum equal to variation when SO further expands it?
2. Understand there are defined and undefined provisional sum. Do we need to carry out remeasurement if the defined provisional sum expands?
Say the contractor is given a set of tender drawings for a restoration work with details and specifications and the quoted rate in psf. And the contract actually captured "Restoration Work (provisional sum) @ RM30 psf" without any breakdown or items beside the building built up.
Item Description Area (sf) Rate (RM) Total (RM)
A. Restoration Work (provisional sum) 5,000 30.00 psf 150,000.00
Is it considered a defined provisional sum? In this case, do we need to carry out remeasurement and renegotiate the price and the contractor to resubmit their quotation if the design remains as per contract drawing?
And what if there are some changes to the contract drawing, should be raised variation for the particular changes or we have to re-measure the entire work again?
What is the difference in terms of defined and undefined provisional sum in terms of pricing and remeasurement?
3. What is the difference between a provisional sum and provisional quantity? As for as I understand, only provisional quantities are subject to re-measurement. But somehow, there are claims that the provisional sum is also subject to remeasurement.
Looking forward to hearing from you.
Thank you very much.
As with most issues like this - it depends on the precise wording in the contract and any documentation the contract refers to.