Professional Documents
Culture Documents
mmm
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149749
CONSTRUCTION PRESS
LONDON AND NEW YORK
CONTENTS
Preface
vii
Chapter 3
Chapter 4
13
Chapter 5
33
Chapter 6
Flowcharts
35
Construction Press
an imprint of: Longman
Group Limited
Longman House, Burnt Mill, Harlow,
Essex CM20 2JE, England .
PREFACE
It was only a matter of time before 'design and build' grew and came of age
in the UK. Contractors knew markets existed for the direct selling of their
construction wares. They knew packages or bids containing inclusive design
services would appeal to many but no 'official' standard form of contract
existed for those who wished to offer, or accept, design/build deals.
Now, the construction industry has what it wants - a JCT Contract
with a pedigree near perfect. Standard in form, rock-anchored into a long
lineage of ways and words familiar to the industry's practitioners, it has the
flexibility needed to satisfy and protect most kinds of client - from the
one-off customer who knows not what he wants (exactly), to the Local
Authority that does know, or the commercial client who has his own team
of conceptual designers needing their outlines developed into drawings,
details and specifications.
Fusing design and building technique together into a full parcel of services
undoubtedly sharpens attitudes to riks, methods, time, cost, quality and
warranties. Furthermore, it forces design/build bidders to compete on three
fronts rather than one (price). Design and their design's life-cycle costs now
become part of the bid battle.
Contractors, to succeed on the second and third front, need to tune in to
social trends, the tax world, the land of lease-back, and learn to play the
discount tables until they are as adept with present values of future pounds
as they are with the future values of present ones; convincing clients their
design's package includes not only the most acceptable design/cost choice
but also the lowest life-cycle cost commitment.
Of course, the ogre of overall unending liability will hover low over
design/build contractors unless the client chooses to utilise the clause 2
facilities to grant certain reliefs where perhaps novel designs are invited.
Otherwise the general fear of major mistakes may slow down the emergence
of bright new British design/builders until the storm clouds surrounding
liability are driven away,
This form of contract should hasten the return of people's confidence in
buildings. It should encourage the marketing of buildings, offering clients
a choice of product, price, quality, longevity, pay-back terms, and life-cycles;
enabling the construction industry to take more and more risks with a
greater degree of certainty that profits will be gained rather than losses
suffered.
This book endeavours to clarify this Contract for practitioners, introducing also chapters on matters of design, bidding and risks. The manuscript
and charts were all converted into print by Margaret Smith, who managed
it all in her usual inimitable way and I extend to her my thanks for such
excellence.
Glyn P Jones
King Faisal University
Dammim
March 1984
Introduction
The traditional procedure for clients wishing to buy new
buildings, or rehabilitate old ones, has been to select an
independent professional designer and to tell or discuss
with him what he wants, what he can afford, and what
aesthetic standards he has in mind. The chosen architect
in turn arranges for contractors to bid for the construction
of his design on the client's property.
Tills distinct two part process has disadvantages well
known to everyone concerned with the design production
and procurement of buildings.
The 'design-and-build' process provides differently for
a one step way of procuring construction work by those
who prefer the designer to be also the builder; they then
can speak to one person about design, time, and price in
a composite way and invite bids composed of these three
unified elements.
Construction work increasingly requires closer integration of specialisms whose designs and their execution must
interlock into ever tighter fits. This is generally acknowledged to be less easily achieved when a design team acts
independently from the construction team.
Fusing the designer's and builder's minds together
undoubtedly sharpens up attitudes to matters of risk,
technique, time, quality, cost and warranties. It forces the
designer to listen to the builder for they are one, acting and
thinking in unison, in their search for optimum solutions.
This frequently topples design choice from its usually
dominant and unassailable place. Design matters have to
In both the above cases, and in an;/ permutation between the two, the JCT Standard Form of design/build
contract accommodates the client's contractual requirements and safeguards to a considerable extent his interests
which are to have, for a lump sum price, the kind of building he wants, built well, and completed when he wants i t .
The JCT contract does not prevent construction delays.
It does, however, reduce the chance of completion being
delayed. Damages, prefixed by the client, will in the usual
way arise unless certain stipulated events have caused the
delay. The contract could quite easily have dispensed with
these and other safeguards of the contractor by placing
these risks upon his shoulders, but a price would of course
be paid by the client whether or not those risks materialised. The JCT reckoned when putting together their
conditions that optimised risk-sharing would give the client
the safest set of terms for the lowest initial cosl bids by nongambling bidders. These conditions do not therefore offer
clients risk-free arrangements.
The risk-sharing to be found in all JCT contracts is
frequently attacked by contract commentators who have
different views on tiie share to be carried by the client.
They would prefer io see most risks borne by the contractor.
Such a policy ignores its inevitable effect; the higher the
risk the higher the bids from non-gambling bidders. Shrewd
clients want to take certain risks for they know there lies
after 15 years
Bid
'A'
Bid
'B'
10000
25000
2000
nil
after 20 years
12000
after 40 years
nil
1 000
after 45 years
Bid
'A'
10000
2000
nil
26000
27000
,on
,
x 0.377 =
,an
,
OOyrs)
1000 (20yrs>
,,ft
,
<4yrs>
1000
x 0.142 =
,._
,
x 0.111 =
Bid
'B'
25000
962
1 000
12000
x 0.231 =
377
2772
142
2000 t 4 5 ^
222
13956
25 519
Bid 'X'
25000
Bid 'Y'
15 000
8 000
5 000
12000
x 0.231 =
Bid
'Y'
1 000 000
1 200 000
Difference
10000
3 000
13000
Bid
'X'
246 077
nil
2772
1 248 849
1 200 000
1
The most obvious of these lies perhaps in production
charges which may affect fuel and power. Climatic changes
or trends towards colder winters/hotter summers would
influence his designs. Age distribution changes may also
require marginally higher or lower heating systems, average
temperature calculations, etc. Employment and income
levels need to be observed, so too do consumption and
expenditure rates; population changes; production and
distribution changes; political changes and marketing
techniques.
Forecasting and 'market research are closely related.
There are leading, coincidental, and lag indicators to
guide design/build bidders in the right directions. For
instance, birth rates and geographical distributions are
leading indicators for (design/build) school and home
bidders. Coincidental indicators include unemployment
rates, retail index rates and crime rates. The 'Bank Rate' is
an important lag indicator.
These all provide a blurred picture of what is happening.
If crime rates against property increase designers must
acknowledge these trends in their proposals. If the unemployment rate increases disproportionately in certain
areas the design/build bidder may incorporate propositions
including special governmental concessions and financial
inducements to clients. If the economy moves into higher
Bank Rates the bidder's design and life-cycle cost calculations will reflect these monetary trends.
If any factor relied upon in the bid changes the contractor and client should react and reappraise the design/
cost picture, making suitable changes bearing in mind total
life-cycle costs can amount to many times the initial cost
concerned.
There is generally an increasing tendency for labour
costs to rise faster than material costs. Labour also plays a
prominent and often irreducible part in the client's future
costs. If such trends continue and we continue to demand
higher standards of comfort and cleanliness then the initial
capital cost is likely to shrink as a proportion of the total
life-cycle cost. The amount of capital needed to be spent
to save future more expensive man-hours therefore calls
for close correlation but it is not worth spending capital
indiscriminately simply in the blind pursuit of saving
future running costs. The rate of interest must appear in
the picture when optimising designs, initial costs and future
costs.
Design factors which influence life-cycle costs
The design/build bidder is anxious to lower his 'free' design
costs and to raise his bid success rate; the client on the
other hand is anxious to receive lower bids for better
designs having lower life-cycle costs. Both have similar
objectives in keeping down initial costs. The bidder, to
succeed, must economically propose efficient cheap buildings, aesthetically pleasing, and likely to last 30-60 years.
He may also put forward alternatives to the Employer's
Requirements within his Proposals, or different designs
having different quality standards and different completion
dates. Furthermore, he must make certain he avoids design
errors and omissions since the ogre of design liability under
clause 2 hovers over all his proposals whatever he does or
the Employer requires him to do. The consequences of
design errors or omissions may amount to enormous sums
if, viewed over their long-term future, left unremedied to
affect adversely life-cycle costs.
A statement concerning life-cycle costs may also be - (a) Gross Floor Area
made detailing:
This factor dictates both initial and recurring costs (cleaning, maintenance, etc). It includes circulation space. Lower
(a)maintenance cost limits (annual and intermittent)
circulation areas generally signify more economical designs
(b)operating cost limits:
but an ultimate 'open-plan' may prove unacceptable or
(i) cleaning
counter-productive.
(ii) caretaking/security
Commercial clients solely interested in net or usable
(iii) gardening
floor areas may be heavily influence^ in their choice or
(iv) rates, water
acceptance of bids if wide variations appear between gross
(v) insurances
and net areas. For instance, if the gross floor area (GFA)
(vi) energy, fuel
cost in the bid of bidder 'A1 equals SOO m2 and contains
(c) Repair and renewal cost limits:
25% circulation area the client's profitable space cost rises
(i) roof coverings
to (800 x 1/0.75) 1067 m 2. If the bid of bidder 'B'
(ii) external walls
equalled 850 m2 but contained only 20% circulation space
(iii) windows, doors
then the client would prefer bid B on the basis (850 x
(iv) interior floor finishes
1/0.80) of 1062 m2 being a lower sam for the rentable
(v) interior walls, partitions
area.
(vi) ceilings
(vii) heating/cooling equipment and hot water
(viii) light/power equipment
(ix) external works
Various storey heights within one building pose annoying problems to designers, who may tend to smooth things
out by choosing one all-purpose height less cost efficient
s-
r = 1.00
4x 25.981
67.500B
(675 m3)
25.981-
C
(675m1)
- 0.159
o
o
d
.
155) + 30
The amount of enclosing walls, load-bearing walls and partitions within a building is cost significant. The 'density' of
such walls can be expressed in the form of an index which
takes account of the contribution made to the enclosure of
rooms by the perimeter walls:
0
,
1 68.75 m
'B'
675
d =
--------25.981---------.
67.500
(675m2)
10.000
\o
o
p
6
CM
c ...
1.49
10.000
04X103324)+ 51.962 =
O /D
the contractor concerned is in terms of expertise and previous experience of projects similar to the one proposed.
2. Managerial resources
This enquiry will examine staff qualifications, their experience, organisational structure and spans of control.
Particular information should be sought on the persons
(and their calibre) who would be made directly responsible
for the proposed project.
3. Financial resources
Balance sheet information and the financial relationships
between a parent company and its subsidiaries may be
examined together with the rates of equity to loan capital
and amount of fixed interest loan capital assessed. Any
imposition or managerial restrictions in force by the company's Bank should be investigated in greater detail.
Performance bonds appear the answer to any financial
unease but the 'premium1 cost would of course be indirectly paid by the client.
4. Safety record and industrial relations
These matters may appear of no concern to the client,
however he does, in clause 25, take the risk that delays
caused by any "local combination of workmen, strike or
lock-out" may require an extension of time to be granted
by the client to the contractor. In any case no client
should accept the bid of any contractor having a known
bad safety record resulting from inefficient safety management.
5. Punctuality record
Completion on time may be crucial to the client. In such
cases great weight will be rightly given to a past record of
punctuality. In this connection details of the companies'
planning department, their use of CPM techniques, and
their use of time control systems will teach the client much
about the bidders' attitude to timely completion.
6. Reputation for quality
The right questions here should disclose the sort of reputation the contractor has, the work entrusted to him because
of liis high standards and any involvement in arbitration or
litigation in respect of alleged defects. The latter must be
viewed with great care particularly if the cases concerned
involve projects the contractor did not design, since the
line between faulty work and faulty design is frequently
blurred.
Having selected bidders he can rely upon the client must
finally choose no more than about six and no less than
about four of those to compete against one another. Efficient non-gambling bidders will in normal times decline to
participate in a design/build competition if more than six
bidders are invited. They know the higher the number of
bidders the lower will be the bid and if an 'open" competition is allowed the lowest bid is quite likely to be below cost\
On the other hand, the lower the number of bidders
below about 4-6, the higher the winning bid.
If a considerable amount of design work is involved in
bidding the client may find few bidders prepared to risk the
The many attributes required of the bidder must be combined with the attributes of each bid and ranked in a
systematic way before the client can choose the best bid.
Bid attributes
Bidder's attributes
\. Technical experience
1. Price Design
2.Managerial resources
2. Life-cycle costs Speed
3.Financial resources
3. of construction
4.Safety and industrial
4.
relations record
Payment arrangements
5.Punctuality record
5. Construction techniques
6.Reputation for quality
6.
Table 3 shows a way in which these attributes can be put
together and weighted by the client according to his needs.
The client may wish to encourage, or hope to receive, an
Table 3
Factors
Weigh ting
Bid 'B'
Rating Result
Bid 'C'
Rating Result
Bid'D' '
Rating Result
Price
20
100
20.00
95
19.00
90
18.00
85
17.00
Design
Life-cycle costs
Technical experience
Managerial resources
Financial resources
Safety record
Punctuality
Industrial relations
Quality record
15
25
3
10
5
3
9
3
90
85
80
95
95
100
85
80
95
13.50
21.25
2.40
9.50
4.75
3.00
7.65
2.40
6.65
91.10
100
95
90
85
90
75
75
80
85
15.00
23.75
2.70
8.50
4.50
2.25
6.75
2.40
5.95 .
90.80
85
100
85
90
95
100
95
90
100
12.75
25.00
2,55
9.00
4.75
3.00
8.55
2.70
7.00
93.30
95
90
90
100
95
100
100
95
100
14.25
22.50
2.70
10.00
4.75
3.00
9.00
2.85
7.00
93.05
Introduction
Clients may wish to know what sort of risks they run under
the JCT design/build Contract and require their advisers
to inform them. There are four classes of risk identifiable
under the Contract:
1.Fundamental
2.Pure
3.Particular
4.Speculative
1. Fundamental risks
These risks may arise from particular construction techniques to be employed in executing the Works, such as
piling., demolition or dewatering, which may unavoidably
cause damage to property other than the Works.
Insurances are to be "maintained" by the Contractor
under clause 21 for certain Particular Risks for an amount
of indemnity the Employer may specify in his Requirements to cover these risks. The client should seek expert
advice on these matters. The premiums (and any special
survey fees) will form part of the price to be paid by the
Employer (client).
4, Speculative risks
The JCT have, in clause 2.5, marginally lowered the Contractor's liability from the standard normally to be expected
of design/build contractors to a level expected of any architect or professional designer. The Employer may if he
wishes go even further and limit the Contractor's liability to
a fixed ceiling excepting where dwellings are concerned.
Obviously any lowering of liability must not be considered unless the potential risk can be accommodated and
the resulting lower bid benefits are substantial! The details
of clause 2 liabilities are discussed further in Chapter 4.
The state of the site and its sub-strata are crucial to the
Works and surroundings. The Employer must (clause 7)
define the boundaries but need do no more.
The Employer should therefore commission the necessary data and maybe a consultant Engineer's interpretation
and presentation of that information concerned.
Whether or not the data are sufficient and representative
of the ground between boreholes for their purposes must
be a matter for decision by the bidders. The bidders will
also decide the ground's condition and its suitability for
construction purposes. They will decide for themselves how
to deal with any groundwater, rock or sand, unless the
Employer's adviser particularly specifies otherwise.
The Employer's adviser will write into the subsoil survey
a disclaimer stating the information is not guaranteed to
match the conditions encountered nor is the information to
be taken as a warranty of the ground's suitability for any
particular purpose.
The Employer and his adviser or agent should also avoid
giving any further or unintended assurances, written or oral,
inside or outside the Employer's Requirements in respect
of the subsoil's condition or suitability for any particular
design.
Where factually correct data are provided the bidders
carry the risks of the ground's condition. However, if the
facts in a subsoil survey given to bidders are found to be
incorrect a question of negligence arises. The Contractor
misled would seek compensation from the Employer, who
would in turn seek recovery of the sum from the consultant
who produced the erroneous report. His professional indemnity policy would come into play in such circumstances.
(c) The risk of changes
Changes and provisional sum instructions tend to disrupt
10
11
Introduction
The heading is misleading. As can be seen from the subheadings the clause deals not only with the "Contractor's
obligations" but also with document status (2.2), discrepancies (2.4), and the treatment of errors within or
between documents (2.3). Furthermore, an Employer's
obligation is also referred to within the clause, ie to give
written notice of any discrepancy or divergences he may
find. The Employer must also make decisions in respect
of discrepancies and issue instructions to correct any
divergence concerning site boundaries,
However, the clause does principally set down two most
important matters:
1. The Contractor's obligation to carry out and complete the Works
and 2. The Contractor's obligation in respect of any defect
or insufficiency in the design.
The Contractor's dual obligation expressed firstly in
Article 1 and in more detail in this clause is to carry out
and complete the Works referred to in the Employer's
Requirements and Contractor's Proposals and for that purpose to complete the design for the Works. The clause
recognises the important word "design" used in Article 1 is
on its own not precise and that the parties may for instance
have agreed that the Contractor will be responsible for
gaining initial planning consents (Development Control
Requirements). This may therefore be said to be part of the
Contractor's "design" obligation. The Employer's Requirements or Contractor's Proposals may on the other hand
state the Contractor is not to do everything or decide everything nor to choose the kind, quality, texture and colour of
every conceivable material, nor all of the goods, nor to set
standards of the Works in every detail. There may therefore
be variable arrangements concerning matters of gaining
statutory consents or choosing things. Matters may be
further complicated where the Employer intends to partly
design in detail a particular element or to put forward his
outline design for the whole of the Works or if he provides
his own soil reports or has himself gained outline planning
consent. The Employer cannot under this Contract nominate sub-contractors or suppliers of his own choosing but
he may reserve the right to judge certain standards by way
of 'on-the-spot' inspections as and when the particular
work is carried out or when certain materials or goods are
delivered.
It is intended that any such diverse arrangements are
written into the Employer's Requirements or the Contractor's Proposals. Whatever then remains to be done, other
than described or stated in either of these two documents,
by way of design is by this clause 2 made the Contractor's
responsibility. The Contractor has a duty therefore to do
everything in the way of design necessary for the purpose
of carrying out and completing the Works so far as he is
not specifically relieved of that obligation by any particular
13
14
Although everything written above indicates how important the Employer's Requirements and Contractor's
Proposals are in setting out obligations, statement CD 16
clearly stipulates the contents of the Employer's Requirements or Contractor's Proposals or the Contract Sum
Analysis cannot override or modify any provisions in the
Articles, Conditions or Appendices.
Nothing contained in the Employer's
Requirements, Conlraclor's Proposals,
or the Contract Sum Analysis must
override or modify the application or
interpretation of the Articles of Agree
ment, Conditions, or the Appendices
CD 16
2.2
Thus, although the Employer's Requirements or Contractor's Proposals may be specially drawn up to express
the parties' intentions, if these intentions run against the
Conditions etc as they stand then statement CD 16 will
render the words within the Employer's Requirements or
Contractor's Proposals ineffective. If the Requirements and
Proposals are united in placing an obligation upon the Contractor, or granting him some special relief, in contradiction
to the Conditions, Articles, or Appendices then whatever is
contained in the Conditions, Articles or Appendices will
prevail. The parties must therefore ensure CD 16 does not
negate their real intentions. They must also ensure correct
completion of the standard Articles and Appendices takes
place. If they wish to enter into non-standard arrangements
CD 16 must be suitably altered.
For example, the parties may intend to limit the Contractor's liability for the consequences of his design errors
and may have written this into the Employer's Requirements and/or Contractor's Proposals with an amount stated
as a limit to the liability. However, failure to enter this
amount or the correct amount in the proper place in the
Appendix will result in CD 16 negating the non-standard
arrangement as written in the Requirements or Proposals
and in the absence of any sum written into the Appendix
will open the Contractor to a no-limit liability.
Clauses 3 and 15 Contract Sum Interim Payments
The Contractor must of course comply with any stipulations written into the Requirements concerning any
accompanying details to be provided to the Employer
(see CD 642 or 683) with each Application for interim
payment.
instruction.
2.A fight exists (in CD 73) to treat all unwritten in
structions as invalid until they are put into writing.
3.A right exists (in CD 6364) to reasonably object to
a proposed Change in previously imposed obligations
or restrictions under clause 12.1.2.
4.A right exists (in CD 190192) to reasonably refuse
an instruction involving an unreasonable Change in
the design of the Works.
The word "forthwith", meaning immediately and without delay, should be read reasonably of course in each
particular circumstance. (Eg, How soon could the required
resources be assembled and put to work? What statutory
notices would have to be given or permits secured? What
reorganisation or reconsideration of the Contractor's
original plans, programme, designs and arrangements would
be needed?) A minor Change sought by the Employer may
have major repercussions on the Contractor's otherwise
regular progress. The Employer must make due allowance
for these things before turning to CD 65/66.
The Employer should also be wary of clauses 25 and 26.
The former pushes the completion date onwards and the
latter entitles the Contractor to recoup from the Employer
any direct loss and/or expense he may incur if his regular
progress becomes materially affected. However, clause 12.4
CD 65
ritten
ring s
not
4.1.2
15
4.3.2
Failure to respond "forthwith" to an Employer's instruction (which clears the four hurdles listed in the third
paragraph under this sub-heading) entitles the Employer
to employ others to carry out the particular ignored instruction. If the Contractor more seriously defaults in
ways described in clause 27 then the latter rights become
operable rather than those in clause 4.
140
16
8.1
Clause 10 Person-in-charge
nstructions
The Employer may issue
re quiring the Contractor to
CD 147
8.3
17
12.2
There are restrictions upon and limits to Changes the Employer may order. Firstly, the Employer is not allowed to
effect a Change which is, or makes necessary, an unreasonable alteration or modification in the design of the Works.
For example, an order to a Contractor, who specialises in
standardised reinforced concrete buildings, changing the
structural frame and cladding to steel may be reasonably
refused. Arbitration is in any case available, to start immediately, to decide whether such a refusal should stand.
Secondly, reasonable objections may be raised by the
Contractor if instructions are issued to change any obligation or restriction previously imposed by the Employer (in
the Requirements) in regard to access or use of parts of
the site, limitations on space and hours, or changes in the
previously specified order of working or completion.
Thirdly, the Employer may not by Change order fundamentally alter the character of the Contract to something
quite different from that which the Contractor had bargained over in the first place.
However, the clause is quite open on the question of
when the right to order Changes comes to an end. It is not
clear whether the Employer is entitled to issue instructions
for extra work or to omit work after the Contractor has
passed the Date of Completion or any extension to it.
There are no restrictions on late orders; in any case the
Contract would become unworkable if necessary orders had
to cease once a particular date had passed.
18
12.4
I
12,4
1
lowance
of the
12.4
Building materials, and to a lesser extent goods, are conventionally to be found deposited all around a building whilst
under construction. A minority will at any one time have
been paid for by the Contractor whilst the majority have
not; a minority of suppliers will have retained title to their
chattels whilst others have not; some of the chattels may
have complicated 'retention of title' clauses attached to
them whilst others have the simplest form possible.
Most of this commercial 'safety-netting' ceases to matter
once the materials or goods have become part of the Works
for then the title-holders are generally reckoned to have lost
their reserved rights since the chattels have lost their identity (as materials etc) and have become a permanent part of
the Works.
However, a few sellers may go a stage further by writing
into their supply contract clauses granting themselves rights,
when unpaid, to enter upon the site and to remove (sever)
their goods even if they have become part of the Works.
None of this need concern the Employer unless the Contractor becomes insolvent, and having no title or money has
unpaid sellers waving retention of title clauses over certain
materials or goods. Even then, a retention of title clause
would not matter unless the Employer had already paid the
Contractor earlier for those materials or goods; or, in the
rarer cases of rights to sever, had paid the Contractor for
incorporating the particular materials or goods into the
Works.
The element of risk for the Employer should be put into
perspective. Firstly, no risk at all arises where there is no risk
of the Contractor becoming insolvent. Any alleged right to
title or to repossess applies only to unfixed materials or
goods. A slight further risk of claims extending to materials
or goods incorporated into the Works may also arise. The
degree of risk for the Employer depends therefore upon the
financial strength of the Contractor.
Under clause 30.2A, where stage payments are arranged,
separately identified payment for materials and goods does
Practical Completion
The Employer Is given the task of declaring in writing the
Works have reached Practical Completion. If he fails to
do so at the right time, or refuses to do so at all, he is in
The Employer must, when the Works
have reached Practical Completion,give
the Contractor a written statement to
that effect;
CD 250
16.1
If predetermined sectional completion is desired a special supplemental agreement (similar to the one published
in 1975 by the JCT for use with their 1963 Contract)
should be used setting out the various amounts of liquidated damages to be paid if the sections concerned are
delayed beyond their particular completion dates.
If under the standard provisions of clause 17 partial
possession of the Works occurs with the Contractor's consent the estimated value of the part taken is to be declared
19
20
CD 275
16.4
damage which is
Employer under
applicable)- anc
CD 336
This clause declares the indemnities provided by the Contractor to the Employer to be:
any expense liability loss claim or proceedings are due to any act or neglect of
the Employer or any person for whom the
Employer isfesponsible
CD 309
20,1
CD 392
24.2.1
The Employer is by this clause given a convenient procedure to collect a predetermined amount as soon as the
Contractor fails to finish the Works by the predetermined
Date for Completion or any extension of that Date.
This clause is based upon the premise (CD 399) the Contractor strives constantly to prevent delay and to prevent
any overrun of the Completion Date. If despite his best
endeavours the Contractor finds the progress of the Works
towards completion is being or is likely to be delayed
he must write to the Employer giving the cause. If any
causal event is one he reckons is a Relevant Event (listed
in clause 25.4) he must include this opinion in his written
notice to the Employer. All this must be done as soon as
it become reasonably apparent to the Contractor that
progress is, or is likely to be, delayed.
CD 399
25.3.4.1
21
25.3.4.2
25.2.2.1
CO 405
22
force majeure
CD 408
25,4.1
CD 410
loss or damage
or more of the
occasioned by a V one
Clause 22 Perils
25.4 3
25.4.4
25.4.4
23
The Employer should, however, be wary if an application to recover loss etc is made promptly by the Contractor
under CD 463 but no formal notification of delay is made
under CD 400 quoting CD 419 as a Relevant Event. Any
serious breach of the Employer under clause 25.4.6 may
bring clause 28.1.2.5 into play.
The two clauses are quite capable of operating independently of one another but may on occasions be unified in Awaiting
matters of time and money. In the case of the discovery necessary
of antiquities clause 34 clearly operates quite separately
even from clause 26, dealing within its own walls with the
loss and/or expense arising from discoveries of objects of
interest etc, requiring the Employer to declare what extension he awards so clarifying the questions to be answered
in ascertaining the loss.
including a
decision unde
compliance with the Employer's instructions under statements CD 147/9 and 150
in regard to the testing of any woik,
materials or goods (including making
good in consequence of such testing); CD
417
25.4.5.3
CD 420
statement CD 31;
25.4.6
work,
accor-
CD416
25.4.5.2
CD 418
25.4.5.2
24
CD 422
unless
the inspection showed that the
materials or goods were not in
dance with this Contract
25.4.7
25.4.3.1
essentials arising during the progress of the Works. The Contractor is under CD 399 expected to be on his toes and
aware of shortages trends, and if necessary should buy in
materials etc ahead of time or reschedule tasks involving
essential labour to avoid or reduce delay. There is a difficult
line between the "best endeavours" of the Contractor
which would not cost him any direct increase in expense
and those endeavours which would cost more. Neither CD
399 nor CD 438 specifically mentions whether the Contractor is expected to stand any unforeseen costs incurred in
preventing delay or in ensuring his progress is maintained.
Where the Employer is not to blame the Employer certainly
cannot be required to stand any sums arising under CD 399
or 438 unless he expressly agrees to do so.
There is a link between this provision and clause 8 under
the words "so far as procurable". The Employer should be
wary where the Contractor states certain essential materials
have become unprocurable rather than difficult to obtain
(see commentary on this under clause 8 earlier).
Statutory obligations by local authorities or undertakings
The words "beyond his control" are crucial, so too are the
words "could not reasonably have foreseen". Both phrases
must apply. Not only must the inability to secure essential
labour, goods or materials be beyond the Contractor's
control but also it must be a state of affairs he could not
reasonably have foreseen at the Date of Tender, which Date
must be inserted in Appendix 1 by the parties.
This Date may be set before the day for handing in the
Tender. Any eventualities undeclared or not known of 10
days prior to the date for handing in the Tender may therefore qualify, since from footnote (v) in the Appendix it
seems intended an inability foreseeable from 10 days before
the Tender Date until the Date of Tender would rank as
being unforeseeable. Obviously in such cases the Employer
may require the Contractor to negotiate and settle the
financial effects with him before their signing of the Agreement.
CD 399 and CD 438 may be utilised by the Employer
if the Contractor complains of delay due to shortages of
Care should be taken in differentiating where a local authority or statutory undertaking is carrying out work "in
pursuance of its statutory obligations" or is otherwise
carrying out non-statutory activities under contract with
the Employer.
In the former case their dilatoriness or failure to carry
out such obligations is to be considered under CD 430/1.
In the latter case their dilatoriness or failure would fall
under CD 424 (clause 25.4.8.1) provided they were properly employed under clause 29; if not, the Employer
would "have no right to operate clause 25 at all and the
25