3. “THE CONTRACTOR SHALL NOT BE RESPONSIBLE FOR THE DESIGN OR SPECIFICATION OF THE PERMANENT WORKS…OR OF ANY TEMPORARY WORKS DESIGNED BY THE ENGINEER”. This form of contract binds the contractor to construct and maintain works in accordance with documents supplied to him.
Ordinarily, the contractor’s only duty is to do the work described in these documents; he takes no responsibility for the result. This sub-clause recognises this position and dovetails with the excepted risk in cl. 20 of the engineer’s design. See the next note.
For the definitions of “Permanent Works” and “Temporary Works” see cl. 1 (1) (j) and (k).
4. “EXCEPT AS MAY BE EXPRESSLY PROVIDED IN THE CONTRACT”:
(a) These Conditions are unsuitable for a wholly or partly design and construct contract without extensive amendment, which has not deterred employers from using the previous edition unchanged for package deals, with unfortunate results. Note that any design responsibility for permanent works must be “expressly” (see p. 215, footnote (x′)) imposed on the contractor. If the contract is silent as to some matter of choice of materials or other detailing the contractor should apply to the engineer for an instruction under cls. 5 or 13, with a possible right to extra payment. For the position of the contractor if he takes it on himself to make the choice see p. 179, N.2. pp
(b) The contractor may nevertheless have some responsibility outside the contract, to warn of defective design. That is part of a large and developing area of the law, which is discussed on pp. 393–4.
(c) As to design by nominated sub-contractors see p. 227.
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