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Construction Law/FIDIC_Contractor`s request for machinery substitution_Country: Montenegro

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Question
Dear Mr. Elliott,

I`m acting as Engineer within a YELLOW FIDIC Contract; the scope of Works is the construction of a Waste Water Treatment Plant.
Lately the Contractor has required to substitute some machineries declared in their Offer; after examining the technical features of the new ones proposed and comparing them with the ones from the Offer, we came to the conclusion that consent for substitution can be done, since the minimum standards contained in the Employer Requirements are met.
Nevertheless, the Employer seems to be reluctant to accept our decision, as they would like to keep the machineries from the Offer.

My question is: could you please indicate some FIDIC clauses we can rely on to substantiate our decision?

Thank you very much in advance.
Best regards,

Enrico Odorisio

Answer
Dear Enrico Odorisio,

It all depends on the instructions in the Tender Dossier and the Contract Documents.  I guess that you have to check whether or not the Contractor is allowed to substitute alternatives.  I would also find out why the Contractor wishes to substitute some machineries and why the Employer is hesitant.  Sometimes a supplier has gone out of business or stopped production of the unit in the offer.  Some times an Employer wishes to maintain specific machinery for compatibility with existing equipment for ease of maintenance and spares.  Of course, the Contractor may have found a cheaper supplier, which could have higher whole life costs, which could be from a country that the Employer does not trust.  I suggest that the substituted machinery should be of a similar quality and ease of maintenance as that included in the offer, or better, not just meet the minimum requirements of the Employer's Requirement.  

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Peter M. Elliott

Expertise

First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol www.eotprotocol.com before submitting a question.

Experience

Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Organizations
Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

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B Sc(Hons) in Civil Engineering

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