JCT D&B 2016 - Novated Consultant Disagreement

JCT Contracts
1

Hi

Contractor question, we’re undertaking some tarmac surfacing works on a D&B contract. Our CPs at tender clarified we’d be using an SMA product to do the final wearing course. These were accepted by our client and nothing contra to its use can be found in the ERs

SMA is a regularly used product for the use case, our supply chain are happy to warrant it’s performance.

However the issue has arisen that the Novated engineer is unwilling to specify SMA as they believe it unsuitable and would prefer a polymer modified ‘named brand’ binder SMA. In our view a definite upgrade in performance and specification.

However the client is unwilling to instruct this as a change, possibly because there is a cost implication. And out Novated engineer unwilling to note the SMA on their detail design drawings compliant with out CPs.

Feels like we’re a bit stuck. Is there a way around? We’ve suggested alternative hot rolled solutions but nothing seem to budge the log jam.

Thanks

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2

John, the problem is that the novated consultant/engineer works now for you (the Contractor) and not for the Employer - you would have to refer to your agreement with the consultant.

Unsurprisingly, if the consultant has also entered into CW agreements with the Employer, they would not take any risk (in their view) approving the less known product. I don’t think that the Employer can be blamed for not instructing the change.

I believe that the only recourse is to demonstrate that, in accordance with the consultancy agreement, the engineer is acting unreasonably (for the various reasons you state) and follow the provisions within it.

I hope this helps.

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