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Construction Law/nominated subcontractor


Dear Mr. Elliot
In a case where the Employer intends to employ FIDIC Red Book 1999 Sub Clause 11.4 (a) to have a work carried out by others because the Contractor rejects to do, is it possible to peform this through a nominated subcontractor under Sub Clause 5.1? At this case the Contractor will probably object to nomination but can the Engineer make a Determination to employ the nominated subcontractor? Can a nominated subcontractor be employed against the will of the Contractor? Please kindly provide your comments.
Best regards

Dear Gokhan,

You do not say why you wish to refuse to do the work.  Under FIDIC 99, you have very few reasons for rejecting an instruction.  If the Employer instructs to use a nominated sub-contractor, then clause 5.2 is relevant. It is not so much that a nominated subcontractor can be employed against the will of the Contractor, but rather that the Contractor cannot refuse to do the work, with or without a subcontractor, provided that it is within the original scope of the works.  

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Peter M. Elliott


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 before submitting a question.


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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')

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

B Sc(Hons) in Civil Engineering

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