The following query is in relation to a situation which has occurred in the context of the execution of

a Lump Sum contract, regulated by a standard FIDIC (Red Book) terms and conditions. The
Specifications call for "Cast Iron" pipes, while the BOQ calls for "UPVC" pipes. The Contractor and
upon the approval of the Engineer, and without having any instructions to do so, executed the Works
in UPVC. Does this entitle the Employer to request cost saving on this item? And on what basis?
Your response to the above is highly appreciated.

ANSWER
You say that you have a Lump Sum Contract. The FIDIC Construction Contract Book is a
remeasurement contract so the payment provisions must have been changed to provide for the
Lump Sum. The answer to your question will depend on the wording of these Lump Sum provisions.
I regret that FIDIC can only comment on questions which on the interpretation of the FIDIC General
Conditions, so we are unable to answer your question. We fear that this is an indication of what
happens if General Conditions are modified by Special Provisions without due care.

SUBCONTRACTOR'S EXPERIENCE

QUESTION
I would like your advice on the definition of a subcontractor, and of the following tender criteria:
"subcontractors' experience and resources shall not be taken into account in determining the
bidder's compliance with qualifying criteria". In other words, does this mean that if a bidder has
worked as a subcontractor, he is not permitted to add that experience as part of his qualification? I
would like your clarification.

ANSWER
The FIDIC definition of a subcontractor is given at Sub-Clause 1.1.2.8 of the 1999 Contract for
Construction as: "Subcontractor" means any person named in the Contract as a subcontractor, or
any person appointed as a subcontractor, for a part of the Works; and the legal successors in title to
each of these persons. Different clients have different criteria when evaluating tenders. FIDIC would
certainly expect that any client will want to ensure that the tenderer has adequate experience as a
main contractor and has not just worked as a subcontractor. However, in FIDIC's opinion, this would
normally be worded as "Experience as a subcontractor ....". FIDIC has also known clients to be
concerned that tenderers have relied on a proposed subcontractor's experience and resources when
preparing a tender and then the named subcontractor is withdrawn and another, less experienced,
company is proposed after the tender has been accepted. However, for an international tender,
some clients require that a certain percentage of the Works must be subcontracted to local
companies. In this case the experience and resources of the proposed subcontractors will be an
important part of the tender. The client's criteria when evaluating tenders depend on a number of
different factors, including the past experience of the particular client. In order to ascertain the exact
intentions for evaluating your particular tender you would need to raise the question with the client.

FREE-ISSUE MATERIALS

QUESTION

I have a question regarding Clause 69.1 for Default of Employer. We are executing a Contract for a
Project in Pakistan under FIDIC Fourth Edition, 1987. The Employer has assigned The Engineer and
also an Employer's Representative. The Employer's Representative is form time-to-time acting like
The Engineer and would like to physically check the works at site. They are also applying deductions
on the certificates of The Engineer, such as retention money on escalation, and also Quantities, etc.
The amount of the unauthorized deductions are around 5 % of the total amount certificates issued by
The Engineer. We have served a notice under Clause 69.1 and 69.4, of the Conditions of Contract to
reduce the rate of work and furthermore, clarify that the Clause 69.1 explains the default of the
Employer, regardless of the quantum of amount in case of Employer's failure to pay to the Contractor
total amount due under any certificate of the Engineer. Do you think that the above statement is true
and it is a case of default of the Employer ?

ANSWER
Depending on what is written in the Contract and the Particular Conditions, generally speaking you
have a case against the Employer. The damages which the Contractor may claim would include
interest and/or financing charges. However, you must check the provisions of the Sub-clause 2.1
Engineer's duties and authority ,to see what is mentioned there. It is not very clear what is this
Employer's Representative and what are his
The following query is in relation to a situation which has occurred in the context of the execution of
a Lump Sum contract, regulated by a standard FIDIC (Red Book) terms and conditions. The
Specifications call for "Cast Iron" pipes, while the BOQ calls for "UPVC" pipes. The Contractor and
upon the approval of the Engineer, and without having any instructions to do so, executed the Works
in UPVC. Does this entitle the Employer to request cost saving on this item? And on what basis?
Your response to the above is highly appreciated.

ANSWER

You say that you have a Lump Sum Contract. The FIDIC Construction Contract Book is a
remeasurement contract so the payment provisions must have been changed to provide for the
Lump Sum. The answer to your question will depend on the wording of these Lump Sum provisions.
I regret that FIDIC can only comment on questions which on the interpretation of the FIDIC General
Conditions, so we are unable to answer your question. We fear that this is an indication of what
happens if General Conditions are modified by Special Provisions without due care.

SUBCONTRACTOR'S EXPERIENCE
QUESTION
I would like your advice on the definition of a subcontractor, and of the following tender criteria:
"subcontractors' experience and resources shall not be taken into account in determining the
bidder's compliance with qualifying criteria". In other words, does this mean that if a bidder has
worked as a subcontractor, he is not permitted to add that experience as part of his qualification? I
would like your clarification.

ANSWER

The FIDIC definition of a subcontractor is given at Sub-Clause 1.1.2.8 of the 1999 Contract for
Construction as: "Subcontractor" means any person named in the Contract as a subcontractor, or
any person appointed as a subcontractor, for a part of the Works; and the legal successors in title to
each of these persons. Different clients have different criteria when evaluating tenders. FIDIC would
certainly expect that any client will want to ensure that the tenderer has adequate experience as a
main contractor and has not just worked as a subcontractor. However, in FIDIC's opinion, this would
normally be worded as "Experience as a subcontractor ....". FIDIC has also known clients to be
concerned that tenderers have relied on a proposed subcontractor's experience and resources when
preparing a tender and then the named subcontractor is withdrawn and another, less experienced,
company is proposed after the tender has been accepted. However, for an international tender,
some clients require that a certain percentage of the Works must be subcontracted to local
companies. In this case the experience and resources of the proposed subcontractors will be an
important part of the tender. The client's criteria when evaluating tenders depend on a number of
different factors, including the past experience of the particular client. In order to ascertain the exact
intentions for evaluating your particular tender you would need to raise the question with the client.

FREE-ISSUE MATERIALS
QUESTION
I have a question regarding Clause 69.1 for Default of Employer. We are executing a Contract for a
Project in Pakistan under FIDIC Fourth Edition, 1987. The Employer has assigned The Engineer and
also an Employer's Representative. The Employer's Representative is form time-to-time acting like
The Engineer and would like to physically check the works at site. They are also applying deductions
on the certificates of The Engineer, such as retention money on escalation, and also Quantities, etc.
The amount of the unauthorized deductions are around 5 % of the total amount certificates issued by
The Engineer. We have served a notice under Clause 69.1 and 69.4, of the Conditions of Contract to
reduce the rate of work and furthermore, clarify that the Clause 69.1 explains the default of the
Employer, regardless of the quantum of amount in case of Employer's failure to pay to the Contractor
total amount due under any certificate of the Engineer. Do you think that the above statement is true
and it is a case of default of the Employer ?

ANSWER
Depending on what is written in the Contract and the Particular Conditions, generally speaking you
have a case against the Employer. The damages which the Contractor may claim would include
interest and/or financing charges. However, you must check the provisions of the Sub-clause 2.1
Engineer's duties and authority ,to see what is mentioned there. It is not very clear what is this
Employer's Representative and what are his
The following query is in relation to a situation which has occurred in the context of the execution of
a Lump Sum contract, regulated by a standard FIDIC (Red Book) terms and conditions. The
Specifications call for "Cast Iron" pipes, while the BOQ calls for "UPVC" pipes. The Contractor and
upon the approval of the Engineer, and without having any instructions to do so, executed the Works
in UPVC. Does this entitle the Employer to request cost saving on this item? And on what basis?
Your response to the above is highly appreciated.

ANSWER

You say that you have a Lump Sum Contract. The FIDIC Construction Contract Book is a
remeasurement contract so the payment provisions must have been changed to provide for the
Lump Sum. The answer to your question will depend on the wording of these Lump Sum provisions.
I regret that FIDIC can only comment on questions which on the interpretation of the FIDIC General
Conditions, so we are unable to answer your question. We fear that this is an indication of what
happens if General Conditions are modified by Special Provisions without due care.

SUBCONTRACTOR'S EXPERIENCE
QUESTION
I would like your advice on the definition of a subcontractor, and of the following tender criteria:
"subcontractors' experience and resources shall not be taken into account in determining the
bidder's compliance with qualifying criteria". In other words, does this mean that if a bidder has
worked as a subcontractor, he is not permitted to add that experience as part of his qualification? I
would like your clarification.

ANSWER
The FIDIC definition of a subcontractor is given at Sub-Clause 1.1.2.8 of the 1999 Contract for
Construction as: "Subcontractor" means any person named in the Contract as a subcontractor, or
any person appointed as a subcontractor, for a part of the Works; and the legal successors in title to
each of these persons. Different clients have different criteria when evaluating tenders. FIDIC would
certainly expect that any client will want to ensure that the tenderer has adequate experience as a
main contractor and has not just worked as a subcontractor. However, in FIDIC's opinion, this would
normally be worded as "Experience as a subcontractor ....". FIDIC has also known clients to be
concerned that tenderers have relied on a proposed subcontractor's experience and resources when
preparing a tender and then the named subcontractor is withdrawn and another, less experienced,
company is proposed after the tender has been accepted. However, for an international tender,
some clients require that a certain percentage of the Works must be subcontracted to local
companies. In this case the experience and resources of the proposed subcontractors will be an
important part of the tender. The client's criteria when evaluating tenders depend on a number of
different factors, including the past experience of the particular client. In order to ascertain the exact
intentions for evaluating your particular tender you would need to raise the question with the client.

FREE-ISSUE MATERIALS
QUESTION
I have a question regarding Clause 69.1 for Default of Employer. We are executing a Contract for a
Project in Pakistan under FIDIC Fourth Edition, 1987. The Employer has assigned The Engineer and
also an Employer's Representative. The Employer's Representative is form time-to-time acting like
The Engineer and would like to physically check the works at site. They are also applying deductions
on the certificates of The Engineer, such as retention money on escalation, and also Quantities, etc.
The amount of the unauthorized deductions are around 5 % of the total amount certificates issued by
The Engineer. We have served a notice under Clause 69.1 and 69.4, of the Conditions of Contract to

reduce the rate of work and furthermore, clarify that the Clause 69.1 explains the default of the
Employer, regardless of the quantum of amount in case of Employer's failure to pay to the Contractor
total amount due under any certificate of the Engineer. Do you think that the above statement is true
and it is a case of default of the Employer ?

ANSWER
Depending on what is written in the Contract and the Particular Conditions, generally speaking you
have a case against the Employer. The damages which the Contractor may claim would include
interest and/or financing charges. However, you must check the provisions of the Sub-clause 2.1
Engineer's duties and authority ,to see what is mentioned there. It is not very clear what is this
Employer's Representative and what are his
The following query is in relation to a situation which has occurred in the context of the execution of
a Lump Sum contract, regulated by a standard FIDIC (Red Book) terms and conditions. The
Specifications call for "Cast Iron" pipes, while the BOQ calls for "UPVC" pipes. The Contractor and
upon the approval of the Engineer, and without having any instructions to do so, executed the Works
in UPVC. Does this entitle the Employer to request cost saving on this item? And on what basis?
Your response to the above is highly appreciated.

ANSWER

You say that you have a Lump Sum Contract. The FIDIC Construction Contract Book is a
remeasurement contract so the payment provisions must have been changed to provide for the
Lump Sum. The answer to your question will depend on the wording of these Lump Sum provisions.
I regret that FIDIC can only comment on questions which on the interpretation of the FIDIC General
Conditions, so we are unable to answer your question. We fear that this is an indication of what
happens if General Conditions are modified by Special Provisions without due care.

SUBCONTRACTOR'S EXPERIENCE
QUESTION
I would like your advice on the definition of a subcontractor, and of the following tender criteria:
"subcontractors' experience and resources shall not be taken into account in determining the
bidder's compliance with qualifying criteria". In other words, does this mean that if a bidder has
worked as a subcontractor, he is not permitted to add that experience as part of his qualification? I
would like your clarification.

ANSWER
The FIDIC definition of a subcontractor is given at Sub-Clause 1.1.2.8 of the 1999 Contract for
Construction as: "Subcontractor" means any person named in the Contract as a subcontractor, or
any person appointed as a subcontractor, for a part of the Works; and the legal successors in title to
each of these persons. Different clients have different criteria when evaluating tenders. FIDIC would
certainly expect that any client will want to ensure that the tenderer has adequate experience as a

main contractor and has not just worked as a subcontractor. However, in FIDIC's opinion, this would
normally be worded as "Experience as a subcontractor ....". FIDIC has also known clients to be
concerned that tenderers have relied on a proposed subcontractor's experience and resources when
preparing a tender and then the named subcontractor is withdrawn and another, less experienced,
company is proposed after the tender has been accepted. However, for an international tender,
some clients require that a certain percentage of the Works must be subcontracted to local
companies. In this case the experience and resources of the proposed subcontractors will be an
important part of the tender. The client's criteria when evaluating tenders depend on a number of
different factors, including the past experience of the particular client. In order to ascertain the exact
intentions for evaluating your particular tender you would need to raise the question with the client.

FREE-ISSUE MATERIALS
QUESTION
I have a question regarding Clause 69.1 for Default of Employer. We are executing a Contract for a
Project in Pakistan under FIDIC Fourth Edition, 1987. The Employer has assigned The Engineer and
also an Employer's Representative. The Employer's Representative is form time-to-time acting like
The Engineer and would like to physically check the works at site. They are also applying deductions
on the certificates of The Engineer, such as retention money on escalation, and also Quantities, etc.
The amount of the unauthorized deductions are around 5 % of the total amount certificates issued by
The Engineer. We have served a notice under Clause 69.1 and 69.4, of the Conditions of Contract to
reduce the rate of work and furthermore, clarify that the Clause 69.1 explains the default of the
Employer, regardless of the quantum of amount in case of Employer's failure to pay to the Contractor
total amount due under any certificate of the Engineer. Do you think that the above statement is true
and it is a case of default of the Employer ?

ANSWER
Depending on what is written in the Contract and the Particular Conditions, generally speaking you
have a case against the Employer. The damages which the Contractor may claim would include
interest and/or financing charges. However, you must check the provisions of the Sub-clause 2.1
Engineer's duties and authority ,to see what is mentioned there. It is not very clear what is this
Employer's Representative and what are his
The following query is in relation to a situation which has occurred in the context of the execution of
a Lump Sum contract, regulated by a standard FIDIC (Red Book) terms and conditions. The
Specifications call for "Cast Iron" pipes, while the BOQ calls for "UPVC" pipes. The Contractor and
upon the approval of the Engineer, and without having any instructions to do so, executed the Works
in UPVC. Does this entitle the Employer to request cost saving on this item? And on what basis?
Your response to the above is highly appreciated.

ANSWER

You say that you have a Lump Sum Contract. The FIDIC Construction Contract Book is a
remeasurement contract so the payment provisions must have been changed to provide for the
Lump Sum. The answer to your question will depend on the wording of these Lump Sum provisions.

I regret that FIDIC can only comment on questions which on the interpretation of the FIDIC General
Conditions, so we are unable to answer your question. We fear that this is an indication of what
happens if General Conditions are modified by Special Provisions without due care.

SUBCONTRACTOR'S EXPERIENCE
QUESTION
I would like your advice on the definition of a subcontractor, and of the following tender criteria:
"subcontractors' experience and resources shall not be taken into account in determining the
bidder's compliance with qualifying criteria". In other words, does this mean that if a bidder has
worked as a subcontractor, he is not permitted to add that experience as part of his qualification? I
would like your clarification.

ANSWER
The FIDIC definition of a subcontractor is given at Sub-Clause 1.1.2.8 of the 1999 Contract for
Construction as: "Subcontractor" means any person named in the Contract as a subcontractor, or
any person appointed as a subcontractor, for a part of the Works; and the legal successors in title to
each of these persons. Different clients have different criteria when evaluating tenders. FIDIC would
certainly expect that any client will want to ensure that the tenderer has adequate experience as a
main contractor and has not just worked as a subcontractor. However, in FIDIC's opinion, this would
normally be worded as "Experience as a subcontractor ....". FIDIC has also known clients to be
concerned that tenderers have relied on a proposed subcontractor's experience and resources when
preparing a tender and then the named subcontractor is withdrawn and another, less experienced,
company is proposed after the tender has been accepted. However, for an international tender,
some clients require that a certain percentage of the Works must be subcontracted to local
companies. In this case the experience and resources of the proposed subcontractors will be an
important part of the tender. The client's criteria when evaluating tenders depend on a number of
different factors, including the past experience of the particular client. In order to ascertain the exact
intentions for evaluating your particular tender you would need to raise the question with the client.

FREE-ISSUE MATERIALS
QUESTION
I have a question regarding Clause 69.1 for Default of Employer. We are executing a Contract for a
Project in Pakistan under FIDIC Fourth Edition, 1987. The Employer has assigned The Engineer and
also an Employer's Representative. The Employer's Representative is form time-to-time acting like
The Engineer and would like to physically check the works at site. They are also applying deductions
on the certificates of The Engineer, such as retention money on escalation, and also Quantities, etc.
The amount of the unauthorized deductions are around 5 % of the total amount certificates issued by
The Engineer. We have served a notice under Clause 69.1 and 69.4, of the Conditions of Contract to
reduce the rate of work and furthermore, clarify that the Clause 69.1 explains the default of the
Employer, regardless of the quantum of amount in case of Employer's failure to pay to the Contractor
total amount due under any certificate of the Engineer. Do you think that the above statement is true
and it is a case of default of the Employer ?

ANSWER
Depending on what is written in the Contract and the Particular Conditions, generally speaking you
have a case against the Employer. The damages which the Contractor may claim would include
interest and/or financing charges. However, you must check the provisions of the Sub-clause 2.1
Engineer's duties and authority ,to see what is mentioned there. It is not very clear what is this
Employer's Representative and what are his
The following query is in relation to a situation which has occurred in the context of the execution of
a Lump Sum contract, regulated by a standard FIDIC (Red Book) terms and conditions. The
Specifications call for "Cast Iron" pipes, while the BOQ calls for "UPVC" pipes. The Contractor and
upon the approval of the Engineer, and without having any instructions to do so, executed the Works
in UPVC. Does this entitle the Employer to request cost saving on this item? And on what basis?
Your response to the above is highly appreciated.

ANSWER

You say that you have a Lump Sum Contract. The FIDIC Construction Contract Book is a
remeasurement contract so the payment provisions must have been changed to provide for the
Lump Sum. The answer to your question will depend on the wording of these Lump Sum provisions.
I regret that FIDIC can only comment on questions which on the interpretation of the FIDIC General
Conditions, so we are unable to answer your question. We fear that this is an indication of what
happens if General Conditions are modified by Special Provisions without due care.

SUBCONTRACTOR'S EXPERIENCE
QUESTION
I would like your advice on the definition of a subcontractor, and of the following tender criteria:
"subcontractors' experience and resources shall not be taken into account in determining the
bidder's compliance with qualifying criteria". In other words, does this mean that if a bidder has
worked as a subcontractor, he is not permitted to add that experience as part of his qualification? I
would like your clarification.

ANSWER
The FIDIC definition of a subcontractor is given at Sub-Clause 1.1.2.8 of the 1999 Contract for
Construction as: "Subcontractor" means any person named in the Contract as a subcontractor, or
any person appointed as a subcontractor, for a part of the Works; and the legal successors in title to
each of these persons. Different clients have different criteria when evaluating tenders. FIDIC would
certainly expect that any client will want to ensure that the tenderer has adequate experience as a
main contractor and has not just worked as a subcontractor. However, in FIDIC's opinion, this would
normally be worded as "Experience as a subcontractor ....". FIDIC has also known clients to be
concerned that tenderers have relied on a proposed subcontractor's experience and resources when
preparing a tender and then the named subcontractor is withdrawn and another, less experienced,
company is proposed after the tender has been accepted. However, for an international tender,

some clients require that a certain percentage of the Works must be subcontracted to local
companies. In this case the experience and resources of the proposed subcontractors will be an
important part of the tender. The client's criteria when evaluating tenders depend on a number of
different factors, including the past experience of the particular client. In order to ascertain the exact
intentions for evaluating your particular tender you would need to raise the question with the client.

FREE-ISSUE MATERIALS
QUESTION
I have a question regarding Clause 69.1 for Default of Employer. We are executing a Contract for a
Project in Pakistan under FIDIC Fourth Edition, 1987. The Employer has assigned The Engineer and
also an Employer's Representative. The Employer's Representative is form time-to-time acting like
The Engineer and would like to physically check the works at site. They are also applying deductions
on the certificates of The Engineer, such as retention money on escalation, and also Quantities, etc.
The amount of the unauthorized deductions are around 5 % of the total amount certificates issued by
The Engineer. We have served a notice under Clause 69.1 and 69.4, of the Conditions of Contract to
reduce the rate of work and furthermore, clarify that the Clause 69.1 explains the default of the
Employer, regardless of the quantum of amount in case of Employer's failure to pay to the Contractor
total amount due under any certificate of the Engineer. Do you think that the above statement is true
and it is a case of default of the Employer ?

ANSWER
Depending on what is written in the Contract and the Particular Conditions, generally speaking you
have a case against the Employer. The damages which the Contractor may claim would include
interest and/or financing charges. However, you must check the provisions of the Sub-clause 2.1
Engineer's duties and authority ,to see what is mentioned there. It is not very clear what is this
Employer's Representative and what are his
The following query is in relation to a situation which has occurred in the context of the execution of
a Lump Sum contract, regulated by a standard FIDIC (Red Book) terms and conditions. The
Specifications call for "Cast Iron" pipes, while the BOQ calls for "UPVC" pipes. The Contractor and
upon the approval of the Engineer, and without having any instructions to do so, executed the Works
in UPVC. Does this entitle the Employer to request cost saving on this item? And on what basis?
Your response to the above is highly appreciated.

ANSWER

You say that you have a Lump Sum Contract. The FIDIC Construction Contract Book is a
remeasurement contract so the payment provisions must have been changed to provide for the
Lump Sum. The answer to your question will depend on the wording of these Lump Sum provisions.
I regret that FIDIC can only comment on questions which on the interpretation of the FIDIC General
Conditions, so we are unable to answer your question. We fear that this is an indication of what
happens if General Conditions are modified by Special Provisions without due care.

SUBCONTRACTOR'S EXPERIENCE
QUESTION
I would like your advice on the definition of a subcontractor, and of the following tender criteria:
"subcontractors' experience and resources shall not be taken into account in determining the
bidder's compliance with qualifying criteria". In other words, does this mean that if a bidder has
worked as a subcontractor, he is not permitted to add that experience as part of his qualification? I
would like your clarification.

ANSWER
The FIDIC definition of a subcontractor is given at Sub-Clause 1.1.2.8 of the 1999 Contract for
Construction as: "Subcontractor" means any person named in the Contract as a subcontractor, or
any person appointed as a subcontractor, for a part of the Works; and the legal successors in title to
each of these persons. Different clients have different criteria when evaluating tenders. FIDIC would
certainly expect that any client will want to ensure that the tenderer has adequate experience as a
main contractor and has not just worked as a subcontractor. However, in FIDIC's opinion, this would
normally be worded as "Experience as a subcontractor ....". FIDIC has also known clients to be
concerned that tenderers have relied on a proposed subcontractor's experience and resources when
preparing a tender and then the named subcontractor is withdrawn and another, less experienced,
company is proposed after the tender has been accepted. However, for an international tender,
some clients require that a certain percentage of the Works must be subcontracted to local
companies. In this case the experience and resources of the proposed subcontractors will be an
important part of the tender. The client's criteria when evaluating tenders depend on a number of
different factors, including the past experience of the particular client. In order to ascertain the exact
intentions for evaluating your particular tender you would need to raise the question with the client.

FREE-ISSUE MATERIALS
QUESTION
I have a question regarding Clause 69.1 for Default of Employer. We are executing a Contract for a
Project in Pakistan under FIDIC Fourth Edition, 1987. The Employer has assigned The Engineer and
also an Employer's Representative. The Employer's Representative is form time-to-time acting like
The Engineer and would like to physically check the works at site. They are also applying deductions
on the certificates of The Engineer, such as retention money on escalation, and also Quantities, etc.
The amount of the unauthorized deductions are around 5 % of the total amount certificates issued by
The Engineer. We have served a notice under Clause 69.1 and 69.4, of the Conditions of Contract to
reduce the rate of work and furthermore, clarify that the Clause 69.1 explains the default of the
Employer, regardless of the quantum of amount in case of Employer's failure to pay to the Contractor
total amount due under any certificate of the Engineer. Do you think that the above statement is true
and it is a case of default of the Employer ?

ANSWER
Depending on what is written in the Contract and the Particular Conditions, generally speaking you
have a case against the Employer. The damages which the Contractor may claim would include

interest and/or financing charges. However, you must check the provisions of the Sub-clause 2.1
Engineer's duties and authority ,to see what is mentioned there. It is not very clear what is this
Employer's Representative and what are his
The following query is in relation to a situation which has occurred in the context of the execution of
a Lump Sum contract, regulated by a standard FIDIC (Red Book) terms and conditions. The
Specifications call for "Cast Iron" pipes, while the BOQ calls for "UPVC" pipes. The Contractor and
upon the approval of the Engineer, and without having any instructions to do so, executed the Works
in UPVC. Does this entitle the Employer to request cost saving on this item? And on what basis?
Your response to the above is highly appreciated.

ANSWER

You say that you have a Lump Sum Contract. The FIDIC Construction Contract Book is a
remeasurement contract so the payment provisions must have been changed to provide for the
Lump Sum. The answer to your question will depend on the wording of these Lump Sum provisions.
I regret that FIDIC can only comment on questions which on the interpretation of the FIDIC General
Conditions, so we are unable to answer your question. We fear that this is an indication of what
happens if General Conditions are modified by Special Provisions without due care.

SUBCONTRACTOR'S EXPERIENCE
QUESTION
I would like your advice on the definition of a subcontractor, and of the following tender criteria:
"subcontractors' experience and resources shall not be taken into account in determining the
bidder's compliance with qualifying criteria". In other words, does this mean that if a bidder has
worked as a subcontractor, he is not permitted to add that experience as part of his qualification? I
would like your clarification.

ANSWER
The FIDIC definition of a subcontractor is given at Sub-Clause 1.1.2.8 of the 1999 Contract for
Construction as: "Subcontractor" means any person named in the Contract as a subcontractor, or
any person appointed as a subcontractor, for a part of the Works; and the legal successors in title to
each of these persons. Different clients have different criteria when evaluating tenders. FIDIC would
certainly expect that any client will want to ensure that the tenderer has adequate experience as a
main contractor and has not just worked as a subcontractor. However, in FIDIC's opinion, this would
normally be worded as "Experience as a subcontractor ....". FIDIC has also known clients to be
concerned that tenderers have relied on a proposed subcontractor's experience and resources when
preparing a tender and then the named subcontractor is withdrawn and another, less experienced,
company is proposed after the tender has been accepted. However, for an international tender,
some clients require that a certain percentage of the Works must be subcontracted to local
companies. In this case the experience and resources of the proposed subcontractors will be an
important part of the tender. The client's criteria when evaluating tenders depend on a number of

different factors, including the past experience of the particular client. In order to ascertain the exact
intentions for evaluating your particular tender you would need to raise the question with the client.

FREE-ISSUE MATERIALS
QUESTION
I have a question regarding Clause 69.1 for Default of Employer. We are executing a Contract for a
Project in Pakistan under FIDIC Fourth Edition, 1987. The Employer has assigned The Engineer and
also an Employer's Representative. The Employer's Representative is form time-to-time acting like
The Engineer and would like to physically check the works at site. They are also applying deductions
on the certificates of The Engineer, such as retention money on escalation, and also Quantities, etc.
The amount of the unauthorized deductions are around 5 % of the total amount certificates issued by
The Engineer. We have served a notice under Clause 69.1 and 69.4, of the Conditions of Contract to
reduce the rate of work and furthermore, clarify that the Clause 69.1 explains the default of the
Employer, regardless of the quantum of amount in case of Employer's failure to pay to the Contractor
total amount due under any certificate of the Engineer. Do you think that the above statement is true
and it is a case of default of the Employer ?

ANSWER
Depending on what is written in the Contract and the Particular Conditions, generally speaking you
have a case against the Employer. The damages which the Contractor may claim would include
interest and/or financing charges. However, you must check the provisions of the Sub-clause 2.1
Engineer's duties and authority ,to see what is mentioned there. It is not very clear what is this
Employer's Representative and what are his