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Construction Law/Additional test to prove product capability

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Question
I would like to request the clarification on a matter which I am currently facing at my project. We have a project with semi government body in KSA, who is forcing us to conduct a test to prove the product capability. It is worth mentioning here that this test is not mentioned explicitly in our conditions of contract. Moreover , our project is lump sum turnkey (EPC) project with client made conditions of contract. This requested test can only be done in USA and Europe and costing around SR 1million. Client's argument is that it is included in your third party test like compaction and concrete tests. At the time of tender, nobody raised an question about that. Please advise me on this matter.

Thanks & Regards

Answer
Dear Muhammad,

Thank you for this question.

The wording of the particular contract will be of importance; however my initial opinion, on the limited information you have provided here, is that the Employer should instruct the Contractor and treat as a variation. If the Employer rejects again the matter can be declared a dispute and resolved through the contract mechanism (if there is one).

If you can provide more information on the contract, including the clauses related to testing, I will be happy to look at the question again.


I hope that this assists you.

Kind regards,
John Dowse

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Construction Law

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John Dowse

Expertise

Legal; contract interpretation; quantum; delay analysis. Practitioner in arbitration, adjudication and mediation.

Experience

Thirty-three (33) years experience in building and construction, at all levels both within contracting and consulting organisations. Practising arbitrator, adjudicator, and mediator. Faculty approved trainer for the Chartered Institute of Arbitrators. Lecturer on construction contract forms and dispute resolution practices.

Organizations
Chartered Institution of Civil Engineering Surveyors Chartered Institute of Arbitrators Institute of Directors Society of Construction Arbitrators

Publications
Various UK and International construction and legal publications.

Education/Credentials
LLB (Hons), Pg Dip (Legal Practice), MCInstCES MCIArb MIOD Barrister

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