Civil Engineering Reference
In-Depth Information
thatiswhattheProposalsprovide.Thatthestatementismadesubjecttotheconditionsvery
clearly tells the reader that the printed conditions have something important to say about
the situation.
ThewordingstronglypointstotheintentionthattheContractor'sProposalswillbedraf-
ted to meet the Employer's Requirements. In doing so it is merely confirming the philo-
sophy of the contract as can be discerned from the recitals as a whole. The Contractor's
Proposals should be an indication of how the contractor is to comply with the Employer's
Requirements - not an indication of how the contractor wishes to construct the project or
allocate risk. The wording of the first and second recitals reflects this.
However, it is misguided to place such reliance on the third recital, because the role of
the recitals in interpreting a contract is limited. Where the words in the operative part of a
contract are clear, the recitals do not vary that meaning. It is only when the rest of the con-
tract is ambiguous that one turns to the recitals for assistance. In this instance the contract
is clear, as can be seen below. Therefore, the third recital has no, or limited, relevance to
this particular question.
The DB contract is clearly written with the intention that the Employer's Requirements
prevail in the following ways:
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Clause 1.3 provides that nothing in the Employer's Requirements or the Contractor's
Proposals can override or modify the printed form.
Clause 2.2 provides that the Employer's Requirements prevail over the Contractor's
Proposals whereworkmanship ormaterials areconcerned. Clause 2.2.1states, inpart,
'All materials and goods for the Works shall . . . be of the kinds and standards de-
scribed in the Employer's Requirements, or, if not there specifically described, in the
Contractor'sProposals'.ItisclearthatitisonlyiftheEmployer'sRequirementsmake
no mention of the materials and goods that the contractor can turn to the Proposals.
Clause 2.2.2 is in very similar words in respect of workmanship.
Under the terms of the contract, the employer cannot issue a change instructing the
contractortovarytheContractor'sProposals.Clause5.1providesthatachangemeans
achangeintheEmployer'sRequirements.Norcantheemployerinstructtheexpendit-
ure of a provisional sum in the Contractor's Proposals (see clause 5.2.3). If the Con-
tractor's Proposals prevailed over the Employer's Requirements, it would prevent the
employerfromissuingchangesinrespectofthediscrepant partsofthoseContractor's
Proposals. That cannot be what the contract intended. Such changes go beyond mat-
ters of design and construction and embrace sequence of work and access, etc.
TheintentionofthecontractisthattheEmployer'sRequirementsandtheContractor's
Proposals should dovetail together. Where they do not do so, it would be perverse to
permit the Proposals to take precedence, because the employer is entitled to assume
that the contractor is complying with the Requirements.
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