Once the contract is signed, the Pricing Preamble
can become more dangerous than most realise.
Those quiet lines that begin “Rates shall be deemed to include…” often shift commercial risk entirely onto the contractor. By the time they’re noticed, the problem usually appears during valuation of a variation or a re-measured element of the works.
What are “deeming provisions”?
These clauses typically appear in the Pricing Preamble and sometimes within the Method of Measurement (most often POMI for building works and CESMM4 for civil works, both still widely used across the region).
They state that rates and prices include for all labour, materials, fixings, and incidentals “whether or not specifically mentioned”. They were originally intended to tidy up small omissions. In practice, they are frequently relied upon to defeat legitimate variation entitlement.
Why this matters on lump-sum contracts
In a lump-sum arrangement, the scope of the Works is defined primarily by the drawings and specification, not by the quantities measured in the BoQ.
However, once variations arise, the BoQ and its preamble are often used as the valuation tool — and that is when the deeming language resurfaces.
Engineers or employer’s quantity surveyors then argue that omitted items were “included in the rate”, even where they were never shown or measured.
Real-world examples
- Head-wall restraints: not shown on drawings or measured in the BoQ. The specification required compliance with local building codes which, in turn, mandated steel restraints for blockwork above a certain height. On one airport project this amounted to over 40 km of steelwork — all treated as “deemed included”.
- Secondary ceiling steel: the preamble said ceiling rates include all fixings, hangers, and supports. The drawings showed none. Seven hundred tonnes of secondary steel were ultimately designed, procured, and installed by the contractor, yet all were deemed included in the ceiling rate.
Both examples show how a few sentences in a preamble can erase large sums of entitlement.
Scope first, price second
As a starting point, always return to the drawings and specification. These documents typically define the contractual scope of the Works.
If an element was not shown, not described, and not clearly inferable, it cannot normally be treated as included in a rate — no matter how confidently the Owner’s QS insists otherwise.
Deeming clauses may widen measurement, but they cannot on their own expand the defined scope of work.
That said, every contract is different. Some drafting expressly links the BoQ, specification, and drawings in ways that alter the usual hierarchy. Before asserting entitlement, check the four corners of the contract — the Conditions, Specification, Drawings, and Pricing Documents — to establish what truly governs scope and valuation on that particular project.
Post-award strategy
- Locate and extract every deeming clause early, from the Method of Measurement, the preamble, and tender Q&A.
- Establish their reach: determine whether they address measurement detail only, or attempt to extend scope. Record that interpretation.
- Frame valuations by scope and instruction, not by BoQ item. Reference drawings, specification, and written instructions.
- Evidence non-comparability: show why the original rate’s composition cannot reasonably cover the additional work.
- Record assumptions in writing: attach a concise “Basis of Valuation” stating inclusions, exclusions, and supporting clauses.
- Seek written confirmation: invite the Engineer to state whether the additional work falls within the existing rate. Neutral correspondence carries more weight than post-fact argument.
These steps narrow the dispute to documented facts rather than opinion.
Lessons for tender teams
- Highlight every clause starting “Rates shall be deemed to include…” during tender review.
- Cross-check against drawings and specification; note inconsistencies.
- Record pricing assumptions (e.g. “No allowance for head-wall restraint steel unless shown on drawings.”)
- Confirm that project-specific preambles do not override the adopted Method of Measurement (POMI or CESMM4).
- Mirror the same risk position in subcontracts and supplier agreements.
davidbrodiestedman@dispute-iq.com
