Variations - Building Contract Claims - page 332

12.5 .6 To the extent that the valuation does not relate to the execution

of additional or substituted work or the omission of work or to
the extent that the valuation of any work or liabilities directly
associated with a Change cannot reasonably be effected in the valuation
by the application of clauses 12.5.1 to .5 a fair valuation thereof shall be
made.

Provided that no allowance shall be made under clause 12.5 for any effect
upon the regular progress of the Works or for any other direct loss and/or
expense for which the Contractor would be reimbursed by payment under
any other provision in the Conditions.

12.6 Effect shall be given to any agreement by the Employer and the Contractor
pursuant to clause 12.4.1 and to the valuation under clause 12.4.1 and 12.4.2
by addition to or deduction from the Contract Sum.

13.8.2 Commentary

General

It will be noted that the wording is very similar to that of JCT 98 clause 13. In
administrative terms, however, there is a significant difference - the lack of
an independent administrator and certifier. Effectively, in this form of
contract the employer and contractor stand facing each other without the
benefit of an intervening architect. The employer's agent is exactly that: an
agent of the employer and it is probable that he owes no duty to the
employer to act fairly between the parties. It seems, however, that he must
demonstrate a very high duty of good faith 601 . His notices do not have the
status of the certificate of an independent architect 602 .
The control documents for the contract works generally which are in place
of the contract drawings and the contract bills are the Employer's Require-
ments and the Contractor's Proposals. A question which often arises is which
takes precedence if there is a discrepancy between the Employer's Require-
ments and the Contractor's Proposals? It is sometimes argued that the em-
ployer accepts the Contractor's Proposals and that forms the contract and,
therefore, the Contractor's Proposals take precedence. That is to view the
formation of the contract as a simplematter of offer and acceptance. Although,
no doubt, much negotiation may take place, the formation of the contract
occurswhen the contract documents are executed by both parties. Essentially,
those documents consist of the printed form WCD 98, the Employer's Re-
quirements, the Contractor's Proposals and the contract sum analysis.
The whole philosophy of this contract is that the contractor is charged with
satisfying the Employer's Requirements. The Employer's Requirements
clearly must be the principal document. Clause 8.1 of the contract makes it
the prime determinant of the kind and standard of materials and workman-

601 Balfour Beatty Civil Engineering Ltd v. Docklands Light Railway Ltd (1996) 78 BLR 42.
602

J. F. Finnegan Ltd v. Ford Seller Morris Developments Ltd (1991) 53 BLR 38.