DELAY AND EXTRA COST
12. (3) To the extent that the Engineer shall decide that the whole or some part of the said physical conditions or artificial obstructions could not reasonably have been foreseen by an experienced contractor the Engineer shall take any delay suffered by the Contractor as a result of such conditions or obstructions into account in determining any extension of time to which the Contractor is entitled under Clause 44 and the Contractor shall subject to Clause 52 (4) (notwithstanding that the Engineer may not have given any instructions or orders pursuant to sub-clause (2) of this Clause)15 be paid in accordance with Clause 60 such sum as represents the reasonable cost of carrying out any additional work done and additional Constructional Plant used which would not have been done or used had such conditions or obstructions or such part thereof as the case may be not been encountered17 together with a reasonable percentage addition thereto in respect of profit18 and the reasonable costs incurred by the Contractor by reason of any unavoidable delay or disruption of working19 suffered as a consequence of encountering the said conditions or obstructions or such part thereof.
CONDITIONS REASONABLY FORESEEABLE
(4) If the Engineer shall decide that the physical conditions or artificial obstructions could in whole or in part have been reasonably foreseen by an experienced contractor he shall so inform the Contractor in writing as soon as he shall have reached that decision but the value of any variation previously ordered by him pursuant to sub-clause (2) (d) of this Clause shall be ascertained in accordance with Clause 52 and included in the Contract Price.20,23
15. “(NOTWITHSTANDING THAT THE ENGINEER MAY NOT HAVE GIVEN ANY INSTRUCTIONS)”. See p. 69.
16. CONTRACTOR SHALL “BE PAID IN ACCORDANCE WITH CLAUSE 60”—i.e. the payment is included in interim and final certificates, and subject to retention.
17. “SUBJECT TO CLAUSE 52 (4)…(THE CONTRACTOR SHALL) BE PAID…SUCH SUM AS REPRESENTS THE REASONABLE COST OF CARRYING OUT ANY ADDITIONAL WORK DONE AND ADDITIONAL CONSTRUCTIONAL PLANT USED WHICH WOULD NOT HAVE BEEN DONE OR USED HAD SUCH CONDITIONS OR OBSTRUCTIONS…NOT BEEN ENCOUNTERED”. There is nothing in this clause to limit the costs for which payment may become due to those incurred after notice has been given. It appears therefore that a defect in the previous edition is cured, by permitting the contractor to recover additional costs incurred before notice, particularly those incurred at a time when it was not possible to appreciate that they were due to conditions or obstructions within this clause. The only circumstance in which the contractor will lose rights is under cl. 52 (4) where the contractor does not give notice as soon as reasonably possible “after…the events giving rise to the claim” and the engineer is prejudiced in investigating the claim by such failure. Cl. 12 (1) implies that such events are to be regarded as having taken place even though the cost which is the subject of the claim has not been incurred (contrast the other cases mentioned on pp.192–3). It cannot be said, however, that the clause is perfectly drafted, and in particular it is unfortunate that the contractor is not bound to give details of past work in his notice (N. 6 and 9)
网友评论