Civil Engineering Reference
In-Depth Information
any way. Therefore, the clause is very broad and any change in any aspect of
the applicable law is a compensation event. It is quite conceivable that there
may be dozens of compensation events on this ground during the life of any
contract. It should be noted that, although the contract date marks the
beginning of such events, there is no concluding date indicated. In practice,
of course, it is only those changes in the law which have an effect on the cost
of the project which will be worth notifying by the contractor. The effect of
the change in the law may be to reduce the actual cost, in which case the
prices are also to be reduced. Perhaps, for that reason, the clause makes
provision for the project manager,
if he wishes to do so
, to give notice to the
contractor and to instruct him to submit quotations.
Some commentators make reference to the guidance notes issued in
support of this contract. However, care should be taken in using the notes.
It should be remembered that, although they may be helpful, they do not
have the force of law nor do they bind the parties. An adjudicator, arbitrator
or judge trying to decide the meaning of the clauses would not be able refer
to the notes.
A delay to the work, additional or changed work, caused by the application of the
CDM Regulations 1994 if an experienced contractor could not reasonably be
expected to have foreseen it: clause U1.1
There is no contractual obligation to comply with the CDM Regulations and,
therefore, failure by any party to so comply is not a breach of contract as it
would be under the JCT contracts. Therefore, the parties do not have any
general remedy for such failure. The obligation lies under statute. This
secondary optional clause provides the only contractual remedy and that
is for the benefit of the contractor. The remedy is qualified to the extent that
an experienced contractor might reasonably be expected to foresee the
delay. If so, there is no compensation event. In practice, such a qualification
may not be easy to agree and recourse to an adjudicator may be indicated.
16.2.4 Procedure
The procedure is set out in clauses 61 to 65 inclusive. These are very
complex in operation.
Clause 61: notifying compensation events
If the event is due to either the project manager or the supervisor giving an
instruction or changing a decision, clause 61.1 states that it is for the project
manager to notify the contractor of the event. He must do this 'at the time of
the event'. Of course, he may not then know that it is a compensation event,
but there is no provision for the project manager to notify an event later. The
notification must be separate from the instruction (clause 13.7). It is sug-
