Civil Engineering Reference
In-Depth Information
. Suspension of carrying out of the works in whole or in part
. Replacement of operatives
. Opening up of work for inspection
. Making good of defects
. Clause 38 cost savings
. The carrying out of emergency work
. Use or disposal of excavated material
. Actions after discovery of antiquities and the like
. Actions for the avoidance of nuisance and pollution
. Contractor's quality control accreditation
. Any other matter which the PM thinks necessary.
It is easy to see that the contractor could incur expense following an instruc-
tion to change the hours of working or to suspend part or the whole of the
works. Indeed every instruction issued by the PM could potentially involve
the contractor in expense. The expense must be directly incurred. In other
words it must be akin to damages at common law
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.
The contract mechanism (clause 43(2)) does not require the contractor to
make a claim or even an application for reimbursement as would be the case
under the JCT contracts. The trigger is the compliance on the part of the
contractor with an instruction. The straightforward meaning of the words of
the clause are that the operative date is the date on which the instruction has
been entirely complied with rather than the date on which compliance
begins. The contractor is to submit the information referred to in clause
41(4) within 28 days of compliance. There are two points of note. The first is
that nothing prevents the contractor submitting information before compli-
ance is completed except for the second point which is that the information
referred to in clause 41(4) is the information 'required' by the QS so that he
can value etc. 'Required' is a curious word. It can have an active or passive
connotation. If the information has to be actively required by the QS, the
provision becomes a nonsense, because the contractor cannot know what
information to provide until the QS has informed him. If the QS does not
inform him until after 28 days from compliance, the contractor cannot
possibly comply with the timetable. The only sensible interpretation to
give to 'required' in clause 41(4) is passive. In other words, the contractor
must provide the information which viewed objectively the QS will need
(require) to determine the expense.
The contractor has 14 days, from receipt of the QS notification of the
expense he has determined, to notify the QS of the reasons for any disagree-
ment with the amount and to submit his own estimate of what the amount
should be, otherwise the contractor will be taken to have accepted the QS
determination. 'Expense' is defined in clause 43(4) as money expended by
the contractor, but it does not include interest or finance charges. In the first
edition of this topic, the view was expressed that 'expense' was limited to
money paid out. On that view, loss of profit would clearly be excluded. It is
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See also Chapter 5, section 5.2 on the meaning of 'direct'.
