Civil Engineering Reference
In-Depth Information
power to issue an instruction to postpone the
Works?
The main provision governing the issue of instructions under MW is clause 3.4. The clause
isbroadlyworded,givingthearchitect powertoissueinstructions withwhichthecontractor
must comply forthwith. At first sight, it appears to give the architect power to issue instruc-
tions about anything connected with the contract. However, the courts generally look to re-
strict such broad wordings, and it is likely that the clause will be interpreted so as to allow
the architect to give only such instructions as are necessary for the proper administration of
the contract. There are only five other clauses which refer to instructions:
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Clause 2.10 permits the architect to issue instructions that the contractor is not to make
good defects.
Clause 3.6 permits the architect to order variations.
Clause 3.7 requires the architect to issue instructions about the expenditure of provi-
sional sums.
Clause 3.8 permits the architect to issue instructions for the exclusion from site of any
person employed on the Works.
Clause 5.4B.2 requires the architect to issue instructions for reinstatement after insured
damage.
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Itisclearthatthereisnoexpresspowertoissueinstructionspostponinganypartofthework.
However, in the case of a relatively short contract such as MW, the courts may well imply
terms if they are necessary to make the contract effective, or they will construe the exist-
ing terms of the contract, such as clause 3.4, in a purposive way. For example, although not
expressly stated, the architect must have power under clause 3.4 to issue instructions requir-
ing the removal of defective work and materials. Allied to that power is the power to order
opening up and testing. It is thought that the architect probably has that power, and it would
be an implied term that where the opening up or the test results showed that the work was
in accordance with the contract, the employer would be obliged to reimburse the contractor
for its costs, and, if appropriate, an extension of time must be given because the delay was
beyond the contractor's control. The architect must have power to issue instructions for the
correction of inconsistencies; otherwise the first discovered inconsistency could bring the
project to a halt.
It is also likely that the architect would have power to postpone the whole or any part of
the Works. The power would not extend to deferring possession of the site. It seems inevit-
ablethatanypostponementwouldresultinanextensionoftimeonthebasisthatitisoutside
