Construction Law/Aproval of materials (Red FIDIC)
QUESTION: Dear Sir,
I'm a Team Leader (Engineer# in a Red FIDIC Contract in Romania.
Recently the Contractor submitted for approval various materials, such as, PVC pipes,waterproofing membranes, and geotextiles.In the Tender Documents#Offer#, the Contractor provided information for these materials-inter alia,that he intended to use during the Contract #brand names, quality documentation and price indications#.To his last submission he requested for approval other brands with similar characteristics, meeting the requirements of the technical specifications, as well. At that point I have an argument with my local Team of inspectors, material and Resident Engineers, that they insist to consider that the information provided at the Tender is Binding the Contractor to choose the brands of the Tender according to A NOT SPECIFIED Romanian Norm.
I consider that the information given at the Tender are just indicative, because of the following reasons:
1. These information provided as evidences to the Brake-down analysis of the offered prices and they are indications of cost and not declaration of usage. Otherwise there is no reason for approvals of materials by the Engineer.
2.Considering that a proposed, at the Tender, brand is not available or not possible to be procured for any reasons, before or during the execution of the Works,is hard to believe that can not be used an equivalent one.
3.This potential determination #to reject materials they are meeting the technical requirements of the Contract but are not included to the price analysis of the Tender, as a brand)could be considered as an indirect instruction to force the Contractor to a specific product, that in my opinion constitutes a "conflict of interests".
4. In any case I consider the role of the Engineer as a Contract Administrator and Consultant and not as a construction materials dealer. Thus I can refer ONLY to the technical characteristics-that I'm obligated to know, and the quality documentation of the required for the Works material.
Please be so kind to advice me on this subject -having in mind the local legislation in force, in order to proceed to a fair determination. By the way there is no any similar restriction to the Particular Con. of the Contract, either.
ANSWER: Dear Sir
You are right.
However you have to check if the materials comply with the specifications.
In some cases the Designeronsent might be needed before your approval.
---------- FOLLOW-UP ----------
QUESTION: Dear Sir,
I express my apreciation for your prompt response. Despites to our interpretation of the Contract on this specific case, the engineers of my team set fourth, in order to justify their -different- opinion, the clause 170 and 171 of OUG 34/2006. As a matter of fact, my knowlwdge in Romanian Legislation is very limited. Thus I reaquest once again your interpretation. Could exist, in your opinion, such a contradiction between FIDIC and Romanian Legislation?
there is no contradiction between FIDIC and Romanian law
og34 is for procurement only
after you sign the contract you go by the contract
what would happen if the original supplier became bankrupt? according with your team you should re-tender. this is not correct
the contractor must justify the change in the source of the material and if accepted it is ok
let me give you another example wyy your team is not 100% correct
what if the contract between the contractor and employer will be terminated? you will re-tender you will not go to the second on the list. therefore og34 is just for procurement
consider that there are several types of eligibility
the project eligibility
hope it helps but sometimes you have to fight on these issues
another option could be for you to asses from technical point of view and ask the employer's approval