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The contractor complied with the specifications ..but?

5 replies [Last post]
Thu, 2007-07-05 00:02
Samir Gharib
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Hello guys,
There is a situation here that there was an item specified at the contract (by the Engineer) to cope with the BS to a certain clause; during the tendering: the contractor pointed out that the specified item is not available at the market but there is an alternative which complies with an equivalent on the ASTM. Both of the Engineer and the Employer have been convinced at that time and agreed therefore the specs. have been adapted to the new material.
On installing that Item on site, severe defects have been appeared directly after installation. The question is:

The responsibility of Replacing or rectifying that item lies on whom? (Employer or Engineer or the Contractor)?

There is a believe that the Contractor has to hand over the project without any defects even if he is not the responsible one.

Regards,
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Replies

Mon, 2007-07-09 00:07
#1
amr mossalam
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In addition to my last post, we can also refer to item 39.1 (C) "Removal of improper work...." which states that the Engineer has the authority to instruct the removal and proper re-execution notwithstanding any previous test if material is not - in the opinion of the Engineer- in accordance with the contract.

Since the material and workmanship were executed according to the inappropriate specification (i.e. as per the contract), the Engineer shall have NO AUTHORITY to instruct either removal or re-execution.

Mossalam
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Sun, 2007-07-08 04:01
#2
amr mossalam
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Dear all,

The case can be summarized as follows:

Material not available in the market (BSI based) ---- Suggested equal material (ASTM based) by contractor during TENDER ----- The Engineer & Employer approved the specs (i.e. The contract documents now contain the specs for the new ASTM material)------ The contractor comply with the newly approved Specs (or actually the signed contract including Specs).

Since the contract is FIDIC based, and refering to the following items: 20.2 & 20.4

Item 20.2 which states that: “If any loss or damage happens to the Works, or any part thereof, or materials or Plant for incorporation therein during the period for which the Contractor is responsible for the care thereof, from any cause whatsoever, other than the risks defined in Sub-Clause 20.4, the Contractor shall, at his own cost, rectify such loss or damage so that the Permanent Works conform in every respect with the provision of the Contract to the satisfaction of the Engineer”

Item 20.4.g states that: “The Employer’s Risks are: ------, g) loss or damage to the extent that it is due to the design of the Works, other than any part of the design provided by the Contractor of for which the Contractor is responsible”


Therefore, the wrongly specified specs is an Employer risk event, CONSEQUENTLY THE CONTRACTOR IS NOT RESPONSIBLE FOR RECTIFICATION (The only responsibility -in my opinion- is keeping the installed material in its original status from the manufacturer till the date of taking over certificate).

On the other hand, the Employer could seek to claim the Engineer for not giving the proper advice or not doing the full care when approving the alternative material during tender stage, which in turn led to the approval of the Client. (The client do not have the technical capabilities to approve unless recommended by the Engineer).

The indemnity insurance could be one of the solutions to cover back the cost from the Engineer.

thnx
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Thu, 2007-07-05 07:00
#3
Richard Spedding
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I’m afraid, Charlie and Samir that the answer, as ever, is ’It depends upon the form of contract’

If it is a D&B contract, then the responsibility is the contractor’s

If it is a ’normal’ form of contract, then if the Engineer has specified something that is unobtainable in the marketplace, then it is his duty to review the specification and specify something else. If the contractor has helped him in this review, it would still be the Engineer’s responsibility to specify something that coordinates with the remainder of the construction. If he has failed to do this, then the costs of rectification would fall to the client. If the client then seeks to recover these costs from the Engineer, that is another matter. If, however, the contractor has installed substandard materials / equipment which fail to meet the revised specification then it will be the contractors responsibility.
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Thu, 2007-07-05 02:13
#4
Samir Gharib
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Thanks Joseph

I agree with your opinion ( Actually my on convenience is: it is the contractor liability) ....but I need a solid basis to defend the contractor claim on the cost and EOT required for rectification.

Any similar case went to court or kind of arbitration ?? any FIDIC clause could be referenced?

Waiting for your response.

Regards,
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Thu, 2007-07-05 01:27
#5
Charleston-Joseph...
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Samir,

It is contractor liability.

Approval of the client does not relieve of the contractor of his responsibility.

The contractor maybe charge with misrepresentation of facts, etc., etc., etc.

The fundamental is in the essence of the contract: approval of the client does not relieve the contractor of his responsibility.

I hope Andrew will agree with me or anyone who got wisdom on this kind of issue since I was also involved with a construction company that challenge this standard contractual cluase and we end up in a messy court case.

Cheers,

Jopseh
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