Civil Engineering Reference
In-Depth Information
contract documents. It is more likely that architect's instructions issued
under this head will be concerned with the relaxation of previously imposed
restrictions.
Much the same comment can be made for the other categories. Where the
architect issues instructions about the use to be made of various parts of the
site, it must not be confused with failure to give possession of the whole of
the site on the date of possession in the contract. Possession must be given
on that date, but the architect can restrict the use. It is doubtful that this
allows the architect to postpone work, because the contract must be read as
a whole and he already has that power under clause 23.2. The architect may
wish to restrict the contractor from storing certain materials, erecting cranes,
siting cabins and the like. Limiting working space probably falls into the
same category while limiting hours might be necessary in response to
complaints and visits from local authority inspectors when the project is
in progress.
The final matter gives rise to most difficulty. The correct vehicle for
conveying the employer's wishes in regard to sequence of work and com-
pletion is the Sectional Completion Supplement. A strict reading of the
clause suggests that although the order of completion and of carrying out
the work may be varied, there is no power under this clause to require the
contractor to complete parts of the works by any specific dates if there is just
one completion date in the contract. In any event, this power must be exer-
cisedwith great care where a Sectional Completion Supplement is also in use.
The architect cannot alter the content of any of the sections by using this
clause, because to do so might invalidate the liquidated damages clause.
There is no mechanism in the contract to amend liquidated damages and it
could be argued that a substantial change in work content would invalidate
the clause.
The powers of the architect to order variations of this kind are, in any
case, subject to a special restriction. Clause 4.1.1, JCT 98, reads in part as
follows:
'The Contractor shall forthwith comply with all instructions issued to him by the
Architect in regard to any matter in respect of which the Architect is expressly
empowered by the Conditions to issue instructions; save that:
.1 where such instruction is one requiring a Variation within the meaning of
clause 13.1.2 the Contractor need not comply to the extent that he makes
reasonable objection in writing to the Architect to such compliance;'
Shorn of its rather convoluted language, what this means quite simply is
that, upon receipt of such a variation instruction from the architect, the
contractor may object to it, and if that objection proves to be reasonable
the contractor will not be obliged to comply with it. The question of whether
or not the objection is reasonable is open to immediate adjudication or
arbitration. The real difficulty in deciding what constitutes reasonable or
unreasonable objection is that the contract provides for the variation to be
valued and, therefore, the contractor should be properly recompensed no
matter what restrictions are imposed or altered.
