Civil Engineering Reference
In-Depth Information
(6) certification;
(7) payment.
Where, unusually, the contractor could not reasonably have anticipated that
regular progress would be affected, and therefore his application is made at
the time of the effect, stages (4) and (5) may overlap or be contemporaneous.
If the contractor's application is not made at the proper time (see section
12.2.4 above) then the architect must reject it (subject to the caveat above),
whatever its merits may be, and he is not empowered to form an opinion
about it. Further, the architect can deal only with matters that are set out in
the contractor's written application; he has no authority to deal with any
matters affecting regular progress that are not the subject of a written
application from the contractor albeit the architect may be fully aware of
them. However, if the contractor has made an application in due time, the
architect must make use of any information he has in forming his opinion,
because the architect is not a stranger on the works
531
.
Further information
Clause 26.1.2 entitles the architect to request the contractor to supply such
further information as is reasonably necessary to enable him to form an
opinion as to the effect on regular progress or whether the deferment of
possession has given or is likely to give rise to direct loss and/or expense. It
is in the contractor's own interest to provide as much relevant information
as possible at the time of his written application and not to wait until the
architect asks for it under this sub-clause. The information which the archi-
tect is entitled to request is that which should
reasonably
enable him to form
an opinion; an architect is not entitled to delay matters by asking for more
information than is reasonably necessary.
It is thought that the architect must attempt to specify the precise infor-
mation required - for example pages 3 and 4 of the site agent's diary or the
time sheets for 27 and 28 July 2004 - rather than simply requiring the
contractor to 'prove' his point. The contractor is entitled to know what
would satisfy the architect and enable him to form a view. This appears to
be the position in law; it certainly should be the aim of the architect, who
might otherwise be accused of delaying tactics.
The ascertainment
The word 'ascertainment' is defined as meaning 'find out (for certain), get to
know'
532
. It is not therefore simply a matter for the unfettered judgment of
the architect or quantity surveyor; the duty upon them is
to find out
the
amount of the direct loss and/or expense for certain, not to estimate it. It
531
London Borough of Merton
v.
Stanley Hugh Leach Ltd
(1985) 32 BLR 51.
532
Concise Oxford Dictionary
.
533
Alfred McAlpine Homes North Ltd
v.
Property & Land Contractors Ltd
(1995) 76 BLR 65. See the
consideration of this point in Chapter 6, section 6.5.
