Civil Engineering Reference
In-Depth Information
role as a tenderer. But it was crucial information for the purpose of deciding the work to be
carried out.
A representation followed by a warning that the information given may not be accurate
will not usually be sufficient to protect the employer, because it is a clear attempt to cir-
cumvent section 3 of the Act. Indeed, such a statement may convert the representation into
a misrepresentation.
18
A misrepresentation may also amount to a collateral warranty. For example, in
Bacal
design and build contract, the contractor was instructed to design foundations on the basis
that the soil conditions would be as set out in borehole data provided by the employer. The
Court of Appeal held that there was a collateral warranty that the ground conditions would
be in accordance with the basis on which Bacal had been instructed to design the founda-
tions and that they were entitled to damages for its breach.
However, care must be taken because it has been held that a contractor in a design and
buildsituation isnotentitled torelyonagroundinvestigation reportthat ismade knownto
the contractor simply by a reference to it on a drawing. It was held not to be incorporated
into the contract but noted simply to identify a source of relevant information for the con-
tractor. In the court's view, that was not sufficient to override a clause in the contract that
placed on the contractor the obligation to satisfy itself about the nature of the site and the
subsoil. In addition, the judge made the following thought-provoking observation:
The nature of a ground investigation report is such that it is unlikely, it seems to me,
that parties to a contract would wish to incorporate it into a contract between them.
All it can show is what was the result of particular soil investigations. If parties did
in fact seek to incorporate a ground investigation report into a contract between them,
difficulties could arise as to what was the effect in law of so doing. If one has regard
to the terms of the [site investigation] report, and in particular to those two parts of
the narrative in which there is a reference to ground water, it really is impossible to
saythatanydefiniteorpositivestatementofanaturesuchascouldamounttoanysort
of contractual term was made. Rather, the information given was hedged about with
qualifications as to the accuracy and reliability of what was shown by the investiga-
tions undertaken.
20
Quite so. Nevertheless, employers continue to include site investigation reports as part of
the contract information given to the contractor before tendering takes place.
