Civil Engineering Reference
In-Depth Information
The authority on this topic is scarce to the point of non-existence.
Under SBC clause 2.3.1, materials and goods have to be provided only 'so far as pro-
curable'. It will be noticed, however, that the contractor's obligation under clause 2.1 is to
provide what is specified in the contract documents. The whole of the contract must be read
together, of course, and the introduction of the word 'procurable' gives the contractor a use-
ful protection if materials or goods are truly unobtainable. Clearly, it does not protect a con-
tractor who discovers that it has miscalculated its tender and that it is more difficult or more
expensivethanexpectedtoprovidewhatisspecified.'Procurable'isnotqualified,and,ona
strict reading of the clause, it can be argued that a contractor is protected even if the mater-
ials or goods were not procurable before the contract was entered into. It might be thought
thatasensibleandbusinesslikeapproachwouldrestrictthemeaningof'procurable'tothose
itemsthathadbecomeunobtainableafterthecontractwasexecuted.Whetherthatisthecor-
rect way to interpret the clause is not certain.
It is difficult to forecast what conclusion might be reached by the courts, still less an ad-
judicator, but a strict reading of the clause results in the conclusion (deeply unattractive so
farastheemployerisconcerned)thatiftheitemsarenotprocurableforanyreason,thecon-
tractor's obligation to provide them is at an end. It then becomes necessary for the architect
to issue an architect's instruction requiring as a variation the provision of a substitute mater-
ial. The variation is to be valued in the usual way.
The effect is to remove from the contractor any obligation to check that specified goods
andmaterialsareprocurablebeforetendering.Inordertochangethissituation,itisprobably
necessary to amend the contract clauses to specify a date after which the contractor is not
responsible if materials or goods are no longer procurable.
It is arguable that if the contract does not refer to materials being procurable, for example
in IC or ICD contracts, the contractor's inability, through no fault of its own, to obtain im-
portant specified materials may render the contract frustrated. In practice, a frustrated con-
tract could be avoided if the architect gave instructions for a variation of the material.
