Civil Engineering Reference
In-Depth Information
If an event occurs which stops the Contractor completing the works at all or from
completing by the date shown on the Accepted Programme which neither party could
preventandwhichanexperiencedContractorwouldhavejudgedattheContractDate
to have such a small chance of occurring that it would have been unreasonable for
him to have allowed for it, then the Project Manager is to give an instruction to the
Contractor stating how he is to deal with the event (clause 19.1).
Although this clause is headed 'Prevention', it is not dealing with prevention in its
normal meaning of acts or defaults of the Employer preventing the Contractor from
performingthecontract.Itdealsmorewith'
force majeure
'typeeventsorothermatters
outside the control of the parties. In considering this, clause 60.1(19) is also relevant.
It makes a prevention event a compensation event. The wording of clause 60.1(19) is
in almost identical terms to clause 19.1. his means the Employer carries the time and
cost risk.
Further, clause 91.7 again repeats the wording and lists this as an event allowing the
Employer to terminate if such an event is forecast to delay Completion by more than
13 weeks.
These prevention provisions give the Contractor the potential to argue a wide range
of events could not have been prevented by either party and have such a small chance
ofoccurringthatitwouldhavebeenunreasonabletohaveallowedforthem.Examples
would include insolvency of suppliers or sub-contractors, supply of defective materi-
als, defective work by sub-contractors, defective design by designers and strikes.
heissueiswiththewords'smallchanceofoccurring'whichmeansitisnotnec-
essary to say they were not foreseeable. The same applies to 'unreasonable to have
allowed for'. hismeans events which were foreseeable but unlikelyto happen provide
apotentialremedy.
he House of Lords in
Scott Lithgow
v.
Secretary of State for Defence
(a shipbuilding
case) considered a term in a contract which allowed Scott Lithgow (the contractor) to
be paid for 'exceptional dislocation and delay arising during the construction of the
vessel due to alterations, suspensions of work or any other cause beyond the contrac-
tor's control'. Delays were caused as a result of defective cables being supplied by one
ofScottLithgow'ssuppliers.hesewerefoundnottohavebeenamatterwithinthe
contractor's control and they gave rise to additional entitlements as a consequence.
This is a useful clause for contractors to bear in mind but often employers will delete
it from the list of compensation events, as it is regarded as too wide.
The NEC3 can be a Contractor design/Contractor designed portion form of con-
tract, depending on what the Works Information states the Contractor is to design
(see clause 21.1).
The Contractor is required by clause 21.2 to submit the particulars of his design, as
the Works Information requires, to the Project Manager for acceptance.
The Project Manager can refuse to accept if the design does not comply with either
theWorksInformationortheapplicablelaw.Alsointermsofclause21.2,theContrac-
tor does not proceed with the relevant work until the Project Manager has accepted
his design. Clause 21.3 allows the Contractor to submit the design for acceptance in
parts if the design of each part can be assessed fully. It should be noted that under
clause 13.8 the Project Manager can withhold acceptance of a submission (for design
or otherwise) by the Contractor, but if acceptance is withheld for a reason not stated in
