3. “HAVING EXAMINED THE…CONDITIONS OF CONTRACT”, ETC. Although the contractor is fixed with notice of the terms of the contract documents whether he reads them or not, it may avoid disputes if attention is drawn to any changes from the standard forms. For the I.C.E. recommended method of incorporating and altering the Conditions refer to p. 25.
4. “SUCH SUM AS MAY BE ASCERTAINED IN ACCORDANCE WITH THE SAID CONDITIONS OF CONTRACT”. The reality is now fully recognised that under this form of contract the contract price can be determined only when the works are finished, on final re-measurement under cl. 56. There is no initial lump sum contract price.
It is therefore particularly essential for the engineer to check the individual rates in the bills of quantities when comparing tenders (p. 17), and to bring home to the employer that what matters is not the starting total of the bill, but the finishing price, which will depend on a number of factors. A key to the payments to which the contractor may become entitled is contained in ch. 11, and “Tendermanship and Claimsmanship” are discussed in ch. 17.
5. MISTAKE IN THE TENDER PRICE. Where a mistake is made by the contractor in writing the bulk price into the tender form from the total of the bill of quantities the position is quite clear—the mistake is binding unless before the tender is accepted the employer or the engineer discovers the difference and realises that it is not intentional (N. 6). If the error is discovered the general rule which applies is that a party cannot effectively accept an offer to contract if he knows that the terms of the offer were not intended by the other party:
A offered to sell property to B, naming a price of £1,250. B knew perfectly well that this was a slip for £2,250 but attempted to accept the offer as it stood. The court refused to order A to sell at £1,250.
This problem does not arise under the I.C.E. 5th edition, since there is no figure in the tender. More difficult are the problems that may arise where there is a mathematical or clerical error by the contractor in pricing the bill of quantities. The error may be in inserting the amount of a rate or failing to price an item, in extending a rate or in totalling or carrying forward totals:
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