Aplicación de la metodología

The Contractor shall take all reasonable steps to avoid damage to roads and bridges including by the careful selection of routes and distribution of loads. Unless the contract says otherwise, the Contractor is responsible for any alterations to roads and bridges necessary for the transportation to site of Contractor's Equipment or Temporary Works and shall indemnify the Employer against any claim arising from damage.

If any damage arises due to the transportation of materials or Plant, the Contractor shall inform the Engineer and Employer. If the local law so provides, the haulier and not the Employer shall be liable for such damage. Otherwise, the Employer shall pay for the damage and indemnify the Contractor except to the extent that the Engineer considers the damage was due to lack of care by the Contractor. The Employer may deduct the Contractor's share of the damage from sums otherwise due to the Contractor. The Employer is to inform and consult with the Contractor in relation to settlement negotiations.

The same principles apply to any necessary waterborne transport.

Sub-clause 30.1 and 30.4 are virtually unchanged from the 3rd Edition save as to vocabulary. Sub-clauses 30.2 and 30.3 have however been fundamentally altered.

This clause should be read in conjunction of clause 19.1 (Safety, security and protection of the environment), clause 22 (Damage to persons and property) and clause 29.1 (Interference with traffic and adjoining properties). Damage to roads and bridges should be insured pursuant to clause 23.1 (Third party insurance) save to the extent that the damage "is the unavoidable result of the execution and completion of the Work": see clause 22.2 (Exceptions). However, in respect of Contractor's Equipment or Temporary Works, the Contractor is responsible for damage regardless of its avoidability. The Contractor is therefore liable for such damage as insurance will not be available in respect of the unavoidable.

In respect of damage due to the transportation of materials or plant under sub- clause 30.3, the Contractor is only liable if he has failed to use every reasonable means to prevent damage.

In arriving at their prices, tenderers will be obliged to obtain information about the bearing capacity of roads and bridges which will be used in the transportation of materials etc. to the site. Under clause 11.1 (Inspection of Site) the Contractor will be deemed to have inspected the surroundings of the site both as to the "extent and nature of work and materials necessary" and "the means of access to the site". In relation to their equipment and proposed Temporary Works, they will be obliged to include for the cost of any necessary strengthening or improvements and for the cost of repairs.

In relation to any strengthening of bridges etc. needed for movement of materials and plant, the Contractor is apparently not responsible for or obliged to pay the cost of such strengthening, but must "use every reasonable means" to prevent damage. The interpretation of such "reasonable means" should presumably be limited to matters of the sort particularised in clause 30.1. It is therefore submitted that a Contractor is entitled to a variation in respect of any strengthening etc. which is necessitated only by the transportation of materials or Plant. It is not immediately obvious why the Contractor should not be asked to price for all strengthening necessitated by the works with additional payment only in the event of additional strengthening being required for the execution of some varied or additional work. In the 3rd Edition, the Contractor was obliged to notify the Engineer of any exceptional load which was likely to cause damage and make proposals for the necessary strengthening. Unless the Engineer served a counter-notice denying the necessity for strengthening or modifying the proposals, the Contractor would be paid. If the foregoing commentary is correct and the Contractor has no duty to strengthen roads and bridges which may be damaged by the transport of materials or Plant and as the obligation contained in the 3rd Edition to notify the Engineer of loads likely to cause damage has been deleted from the 4th Edition, the Employer is left exposed to damage claims which could have been avoided. It would normally be much cheaper temporarily to strengthen a bridge than to repair it. This is an oversight that must surely be rectified.

An addition to sub-clause 30.3 is the requirement that the Employer should inform the Contractor about the negotiation of any settlement and consult with

him if liability is to be shared. In the 3rd Edition, the Employer would simply negotiate the settlement and the Engineer would certify the amount payable by the Contractor. The Contractor's only defence to excessive settlements would be the difficult task of persuading the Engineer or an arbitrator that the amount paid out was due to poor negotiation rather than the Contractor's lack of care for the bridges etc.

This clause proceeds almost on the assumption that the Employer is part of the government in the Country in which the works are taking place and the Engineer is employed by the Ministry of Public Works or equivalent. The absence of any reference to liaising with local authorities and the assumption that a Contractor may set about strengthening bridges and "improving any road" will often be quite unrealistic. In this regard, this clause should be read with clause 26.1 (Compliance with statutes, regulations) as the local law will often have provision for the movement of exceptionally heavy loads around the country.

The liability of both Employer and Contractor should be covered by the insurance under clause 23 (Third party insurance).