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Construction Law/nominated subcontractor

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Question
Dear Mr. Elliot
1. We are at Engineer side. The Works are at DNP and some systems are not working. The Contractor claims this issue is not his responsibility but we disagree. He is refusing the instruction to remedy.
2. Employer transmitted a notice under Sub Clause 11.4 (a) that if in given time those works are not performed, they will have them performed by others at Contractor's cost.
3. Employer's involvement to have these works done by others require complicated procedures due to their internal structure (tendering, evaluating, approvals etc) that is why we have proposed use of nominated subcontractor to avoid these procedures.
4. The Contractor will probably object to nomination but as Employer / Engineer are able to instruct the nominated subcontractor to implement works and payment can be made directly to him, this solution seemed more practical.
I would be glad to have your comments.
Best regards
ps In my previous message the keep private option was marked by mistake.

Answer
Dear Gokhan,

Clause 11 deals with the Defects Notification Period.  Clause 16 deals with termination by the Employer, Clause 7.6 deals with remedial work and clause 5 deals with nominated subcontractors.  

I suggest that discuss the problem with the Contractor informally.  You could explain that he has no right to refuse the instruction, but that he does have the right to be paid for the work, if he can prove that the defect is not due to his fault.  If the Contractor refuses to carry out an instruction, he is in breach of contract and the Employer can terminate the Contract.  Of course you may not wish to terminate the Contract.

Under FIDIC 99, nominated subcontractors become domestic subcontractors, once a contract is signed with the Contractor, and have no special rights or obligations beyond those for any other subcontractor.  The Contractor can object to a nominated subcontractor or make the conditions for the subcontract so onerous, that either the Employer objects to, or the subcontractor refuses to sign, the subcontract. Clause 5.4 governs payments to nominated subcontractors, but it can be a problem if the Employer makes payments which the Contractor contests.  

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Peter M. Elliott

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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.

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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
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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')

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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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