Civil Engineering Reference
In-Depth Information
S6.5
If within 10 days of receipt of the Contractor's estimates the Contractor and
Employer cannot agree on all or any of the matters therein the Employer;
S6.5
.1 may instruct compliance with the instruction and that S6 shall not apply
in respect of that instruction; or
S6.5
.2 may withdraw that instruction; or
Where the Employer withdraws the instructions under S6.5.2 such with-
drawal shall be at no cost to the Employer except that where the prepar-
ation of the estimates involved the Contractor in any additional design
work solely and necessarily carried out for the purpose of preparing his
estimates such design work shall be treated as if it were in compliance with
a Change instruction.
S6.6
If the Contractor is in breach of S6.2 compliance with the instruction shall be
dealt with in accordance with clauses 12, 25 and 26 but any resultant
addition to the Contract Sum in respect of such compliance shall not be
included in Interim Payments but shall be included in the adjustment of the
Contract Sum under clause 30.5. Provided that such addition shall not
include any amount in respect of loss of interest or any financing charges
in respect of the cost to the Contractor of compliance with the instruction
which have been suffered or incurred by him prior to the date of issue of the
Final Statement and Final Account or the Employer's Final Statement and
the Employer's Final Account.
13.8.4 Commentary
Clauses 12, 25 and 26 are modified, but not superseded, by this provision
which has some similarities to alternative A of clause 12. If the supplemen-
tary provisions are stated in the Appendix to apply, the contractor will be
expected to operate these provisions without prompting.
The procedure is triggered when the employer issues an instruction
under clause 12. If either the employer or the contractor is of the view that
the instruction will involve either valuation or extension of time or loss
and/or expense, the contractor must submit certain estimates (noted below)
within a particular timescale. The timescale is 14 days from the date of the
instruction or within any period agreed or, if no agreement, within such
period as may be reasonable in all the circumstances. On the face of it, there
is an obvious problem, because the clause calls for the contractor to act on
the basis of an opinion which may be held by the employer alone and which
the contract provides no mechanism for transmitting to the contractor. Thus
if the employer issues an instruction which he believes will give rise to an
extension of time, but which the contractor thinks will have no effect, the
contractor is obliged to submit estimates within the prescribed period
although the employer may not have communicated his opinion. This
drafting flaw is made tolerable only by the fact that, in practice, it will be
rare that a contractor does not believe an instruction will result in valuation,
