Civil Engineering Reference
In-Depth Information
The description of the 'works' in the portion of the articles of agreement which I set out
earlier in these reasons includes a reference to the specifications. The respondent's promise in
clause 1 of the articles is to do the work shown in the drawings and described by or referred
to in the specification and conditions. The conditions refer to the works shown in the drawings
and described in the specification: but the contract conditions are paramount (clause 1(c)).
However, in any case the specification is only incorporated insofar as it describes the 'works',
presumably, the works which are to be found in or which form part of the works found in the
drawings. It seems to me that the part of the specification most relied upon by the appellant,
namely the basis of tender, does not perform or relate to the function of describing the works.
In terms it relates only to the footing on which the tenderer should make his bid. Whether or
not the building owner will exact a promise to make good that footing is quite another matter,
particularly where as here, it is throughout intended that the mutual rights and obligations of
the parties shall be exclusively expressed in a formal manner. So far from the basis of tender
clause in the specification being a description of work, it seems to me to have become at the
time of the execution of the contract no more than an historical step in a negotiation which
preceded the making of the agreement. It is not reflected in the terms of that agreement either
expressly or by implication. But out of deference to the submissions which were pressed upon
us, let me say that, even if one moved the whole of the clause 'Basis of tender' into the opera-
tive part of the articles of agreement, the result would, in my opinion, be the same. Nothing
can be made, in my opinion, of the use of the word 'turnkey'. It is not a term of art and, even
if it could be taken to mean that the works must be handed over as a going concern, I would
not have thought that in the context of these articles the word or expression meant that the
builder warranted the efficacy of the works he had agreed to erect. The same reasoning would,
in my opinion, deny that the acceptance of all responsibility for supply and erection and
efficient operation of the project - itself a very inapt word in any case in the circumstances
- involved any undertaking as to the suitability of the agreed design. Lastly, the paramountcy
of the contract conditions, which do describe the works agreed to be done, would prevent the
clause of the specification having the submitted effect, if in truth it could be construed as
imposing the obligations the appellant seeks to draw from it.
In my opinion, for all these reasons I conclude that the respondent promised no more
than to carry out the specified work in a workmanlike manner. This, according to the arbitrator
it did.
Work under a JCT contract does not normally include 'design' as part of the contractor's obli-
gation and in so far as a performance specification in the bills of quantities purports to impose
upon the contractor a responsibility for design it is seeking to modify the interpretation of the
contract conditions which JCT 98, clause 2.2.1 [JCT 63 clause 12(1)] does not permit. See now
JCT 2005, clause 1.3.
John Mowlem & Co Ltd v. British Insulated Callenders Pension
Trust Ltd
QUEEN'S BENCH DIVISION
(1977) 3 Con LR 63
Mowlem contracted with BICP to build a warehouse and office block. The contract
was in JCT 63 form, private edition, with quantities. The third party (Jampel) were
