Hello Mr. Dowse,
Our client issued specifications with the Contract (in East Africa) for an apartment block under Design and Build Procurement. The contract is largely based on FIDIC yellow. In the order of priority, the specifications are listed after the particular and general conditions of contract. The specification detailed specific reference to double glazing units. Our design was for a single glazed solution which we submitted to the client by way of drawings, a specification and samples on site. The Contract Administrator approved the specification and the units have been subsequently installed. Almost one year after the approval, the client has highlighted that the windows don't comply and are intimating that same should either be replaced or perhaps costs are deducted from us in lieu of the lesser specification.
Our defence thus far has been that the single glazing was approved and we have complied with clause 5.2 (Contractor's Documents) 6th paragraph, (a) (ii). But as per normal, the approval doesn't relieve of us of or duties under the contract etc. etc.
Please advise if we have any other right to argue our case.
Thank you for this question.
To paraphrase your point, the Contractor installed window units that were not in accordance with the specification against which it priced and relies upon an approval, at site level, of the units as installed as a defence to either an instruction to remedy defective work or a claim for reduction in value.
The Contractor's position is not strong; however the wording of the submission for approval and subsequent approval may giver support if it can be seen as an implied promise to accept a variation in the specification without change in price. I suggest, however, that the most pragmatic way of resolving this is to negotiate, if possible, reduction in cost to give back the benefit that the Contractor has gained from his 'breach' of contract and to rely, in part, upon the prior approval and subsequent delay as being a breach of an (implied) duty of care by the Employer and his Engineer towards the Contractor.
I hope that this assists you.
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