Civil Engineering Reference
In-Depth Information
asked for special acoustic windows which the
Contractor's Proposals did not include. The
contract is signed. Can the employer insist on
the special windows at no extra cost?
Attherootofthisquestionisthepriorityofdocuments.InDB,twosituationsareenvisaged:
a discrepancy within the Employer's Requirements and a discrepancy within the Contract-
or'sProposals.Ineachcase,employerandcontractorsharethedutyofinformingtheotherif
a discrepancy is discovered. Under clause 2.14.2, a discrepancy in the Employer's Require-
ments is dealt with in whatever manner is stated in the Contractor's Proposals or, if not so
stated, as suggested by the contractor; the employer can either accept the contractor's solu-
tionorrejectitinfavourofitsownsolution.Eitherway,itistobetreatedasachange(which
is the term for a variation in DB). A discrepancy in the Contractor's Proposals is covered
byclause 2.14.1.The contractor must suggest an amendment, and the employer may choose
between the discrepant items or the suggestion at no additional cost.
WhathappenswhenthereisadiscrepancybetweentheEmployer'sRequirementsandthe
Contractor's Proposals? In this case, the Employer's Requirements asked for special acous-
tic windows, but the Contractor's Proposals, by accident or design, did not include them.
The DB contract does not expressly address this problem. Footnote [3] emphasises the im-
portance of removing all discrepancies between the two documents. Unfortunately, discrep-
ancies will occur. The usual way of resolving such matters is on the basis of priority of doc-
uments.
It is often mistakenly said that the third recital of the contract covers the position and
shows that the Contractor's Proposals take precedence. This recital provides that the em-
ployer has examined the Contractor's Proposals and, subject to the conditions of the con-
tract, is satisfied that they appear to meet the Employer's Requirements. Whatever else may
besaidaboutthisrecital,theuseoftheword'appear'andthefactthatitissubjecttothecon-
ditionsissignificant. Withoutthesequalifiers, theemployerissatisfied thattheContractor's
Proposals meet the Employer's Requirements. The addition of 'appear' makes clear that the
satisfactionissimplydealingwithsurfaceappearance.Onemightsay'onthefaceofthings'
or, as the lawyers used to say before Latin became unfashionable,
prima facie.
The diction-
arydefines'toappear'as'togiveanimpression'.Itisclearlynotintendedthattheemployer
orhisorheradvisersexhaustivelychecktheContractor'sProposalsto
ensure
thattheymeet
the Employer's Requirements. Had such a thing been intended, it would have been easy for
thedraftsman tohaveusedclear wordstothateffect.Iftheemployer requested afive-storey
office block in the Requirements, the third recital merely records that the employer believes
