Construction Law/FIDIC 87 - Approval for Alternate Material
I am working with one of the Contractors as Quantity Surveyor. We are facing an issue in one of our projects. The project is an infra-structure development project. The Contract was based on FIDIC 1987 4th edition in a traditional procurement route.
The Contract specified a brand for a particular material with strength 10N/m2 or equivalent product.. As an equivalent product the Contractor proposed another brand material with 11N/m2. The Engineer’s Representative approved the material submission. The Contractor progressed with work completed 70% of work until the progress of Works was suspended on the instruction of the Engineer.
During the suspension, as mutually agreed with the Contractor, the Employer replaced the engineer and then the Works restarted. The newly appointed Engineer asked to resubmit all the material submissions. The Engineer disapproved the material submission the alternate material by the contractor stating that they do not comply with the Contract requirements. They also asked the contractor to submit method statement for rectify the work completed with
We demonstrated that the submitted material and so the installed materials fully comply with the Contract requirement. The specified material only had a compressive strength of 10T/m2 where as the alternate material proposed and installed by the contractor has compressive strength of 11T/m2. The engineer then tried to apply additional and unreasonable criteria for approving the alternate material. One of them was an undertaking letter from the material manufacture. We informed them that we are not liable to provide such warranties. The argument is going on now.
During the discussions I understood that newly appointed Engineer does not have confidence in the adequacy of the design by the previous consultants. He is trying to impose additional factor of safety without admitting that but by asking the Contractor to revise the material with his own cost.
This portion of the works accounts for only 15% of the overall scope. But delay in executing this will delay the other works to be carried out after this activity and the project delivery will be delayed.
We (the contractor) are confident that the material proposed and installed by them is complying with the Contract specification. We are not sure about the design adequacy which is not our liability as per the Contract.
In this scenario; could you please answer my following questions?
• Can the contractor continue with the previously approved material without getting the approval from the new Engineer? - If yes; what will be te consequence? . if no; as per which clause in contract.
• Is the contractor is entitled for EOT if he continue to convince the Engineer and wait for the approval of the submitted material or revised design from the Engineer. If yes; are there any risks in doing so? (notices will be served)
• If the contractor resubmit the material as advised by the engineer and do the rectification also. Then while progressing with the work if he submits a claim for additional payment for rectification and revised material specification; contractually or legally is there any ground to get the claim approved?
First of all, till to the time of replacement of the Engineer, there was an Engineer at site, so that all work done and material used approved by him are considered approved. If the new Engineer request you to change approved material already utilized in the Works constitute a Variation Order and he should consider time and cost compensation to the Contractor.
You have to ask the Engineer to issue a Variation Order in writing for change or replacement of material already approved.
For second question, yes you are entitled to EoT also.
Your last question is also answered here above.
If new Engineer, do not approve as above, then you may have a case of dispute that you can invoke arbitration clause. However, even if you do that, do not forget that you are also obliged to perform as instructed by Engineer (even it is disputed Variation Order, you have to perform instruction while you are negotiating or disputing the cost and time of VO).