But That's Not What You Said! Responsibility For Information Under The Public Works Contracts

Author:Ms Niav O'Higgins
Profession:Arthur Cox

The provision of information by the employer or the employer's design team to a contractor and the allocation of responsibility for the accuracy of that information is a key aspect of risk allocation under any construction contract. Information can extend to documents, such site investigations and site surveys, as well as technical information relevant to the works to be carried out. Such information may be provided either before a contract is entered into or during the course of works. The public works contracts adopt an approach which seeks to pass as much risk as possible onto the contractor for checking the accuracy of all information which may be provided, and changes made in the latest version of the public works contracts (published in July 2011) have reinforced this philosophy.

Various documents are included as part of the contract. These are listed in order of precedence and include the Agreement, the Schedule (which sets out the contract particulars) and Letter of Acceptance, which may also incorporate any listed post-tender clarifications. The contractor's completed tender, excluding any attached documents (such as the tender programme) is also a contract document, followed by the Conditions of Contract. The Works Requirements which are prepared by the employer or employer's design team are an important document insofar as it is this document which describes the works to be constructed and will incorporate all drawings and specification requirements. The final documents included in the contract are the Pricing Document and the contractor's Works Proposals and then any other documents in the contract.

Under the traditional form of public works building and civil engineering contracts, factual errors contained in the Works Requirements concerning the Site or in relation to setting out information will constitute both a Delay Event and a Compensation Event. The public works contracts are then silent as to other information contained in the Works Requirements, although if a change is instructed by the Employer's Representative (perhaps to amend a drawing), this will give rise to an entitlement to an extension of time and/or an adjustment to the Contract Sum. Under the design & build forms of contract, however, the contractor is required to assume the risk of any inaccuracies in the Works Requirements. In clause 1.7, the contractor confirms that prior to entering into the contract, the contractor has satisfied itself as to the...

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