18. “THE CONTRACTOR UNAVOIDABLY INCURS DELAY OR COST”. Why is “unavoidably” slipped in here, although not in cls. 12, 31 or 44? Why more strict than “could not reasonably avoid” in cl. 59A (3) (b)? And see cl. 59B (4) (b). Very often delay and cost are not both. unavoidable, but alternatives. The wording of this clause invites the absurdity of an engineer arguing in such a case that delay was avoidable by more expenditure by the contractor, and that cost could have been avoided by taking more time to do the work, so that the contractor loses under both headings.
Obviously the test must be reasonableness. It is suggested that if the contractor chooses to avoid or reduce delay by uneconomic working, the engineer may not be bound to award the contractor’s resulting costs, particularly if he had warned the contractor that he will not do so and given an appropriate extension of time. The engineer similarly may refuse a full extension of time claimed by the contractor so far as the delay is due to use of inadequate resources by the contractor.
19. PAYMENT “SUBJECT TO CLAUSE 52 (4)…IN ACCORDANCE WITH CLAUSE 60”—dealing with notice of money claims and inclusion in interim and the final payment certificates, subject to retention.
20. PAYMENT OF “SUCH SUM IN RESPECT OF THE COST INCURRED AS THE ENGINEER CONSIDERS FAIR IN ALL THE CIRCUMSTANCES”. A further addition to the disparate galaxy of phrases used in these conditions to describe additional payment to which the contractor may become entitled. Presumably since the sum is “in respect of the cost incurred”, profit is excluded. Presumably also the contractor may be paid less than his actual costs where the costs have been increased by inefficiency, but may he be awarded less for any other reason? One possibility is mentioned in N. 18.
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