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Construction Law/Use of new materials

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Question
Dear Sir,

We, as subcontractor, carrying out construction works of roads with concrete pavement. The materials are supplied by such as gravel, sand, cement and all are locally produced. But our problem is that, the Engineer is refusing to approve new gravel we are offering for use in concrete pavement. We have carried out required tests and the material complies with quality requirements. The Engineer says that the material cannot be used because at the moment another material is being used and it is approved. What an answer from such an experienced Engineer. So my question is is there any clause in FIDIC 2006 where it allows the contractor or subcontractor propose the use of new materials following the submission of all testing results. Can we refer to sub clause 13.2 Value engineering. The main reason we are offering this material is that the transportation costs will be radically decreased for us resulting in cost savings. Please advise me how to persuade the Engineer and what clause shall I refer to in FIDIC. Thank you.

Answer
Dear Hikmatjon,

Thank you for this question.

I presume that the contract is one where the Employer provides the design and the specification and the Contractor builds to those requirements, rather than the Contractor both designing and building. As such any approval of materials would be at the Engineer's discretion subject to all tests being passed. The discretion should not be withheld unreasonably.

Under the standard FIDIC terms and conditions, the Employer specifies which samples of materials are required. This can be specific to particular manufacturers or suppliers. Once the samples are approved the Contractor should not use alternative materials unless those alternatives are also approved.

With stone it is customary in my experience to have more than one approved supplier, particularly in locations where supplies are not consistent. The Contractor is then free to choose between suppliers.

You have not stated what stage the Works are at and whether you are suggesting the alternative source as a back up or your primary supplier. From the discussion on cost saving I infer that the alternate would become your primary supplier.

In the present case, I suggest as follows:

1. If you have valid concern over the supply from your initial supplier you can use that as the basis for proposing a change.

2. The Engineer should not act unreasonably inn exercising his discretion. At your request, the Engineer should detail in writing his reasons for rejecting your suggestion

3. I think your suggestion of a change under the principle of value engineering is a good one if the saving is sufficiently attractive.

4. If the Engineer remains inflexible, you can ask the Engineer to make a determination of the issue under sub-clause 3.5, at which time this requires the Engineer to consult with both Parties and to make a fair and reasonable determination if agreement is not reached. In the vent of dissatisfaction the matter can be referred to the contract dispute resolution procedure.



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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