DEDUCCIONES POR INCUMPLIMIENTO

The Engineer may issue further drawings and instructions necessary for the project. The Contractor is to comply with them.

Where any part of the Works is to be designed by the Contractor, he shall submit his proposed design and back-up information for the Engineer's approval and after the Works have been constructed, all necessary operation and maintenance manuals, drawings etc. Substantial completion will not be achieved until such manuals and drawings have been submitted and approved by the Engineer. The Engineer's approval does not relieve the Contractor of his design or other responsibilities.

Sub-clause 7.1 is taken from the 3rd Edition with amendments mainly of vocabulary but sub-clauses 7.2 and 7.3 are entirely new and have been adopted in principle by ICE 6th as sub-clauses 7(6) and 7(7).

7.1 This clause is, with clause 13.1 (Work to be in accordance with the contract) and clause 51.1 (Variations), one of the most important clauses authorising the Engineer to issue instructions. There are some 19 clauses overall giving the Engineer power to instruct but the remainder are specific, such as the power to instruct in regard to ambiguities at clause 5.2 (Priority of contract documents). The power under this clause is limited to such instructions "as shall be necessary for the purpose of the proper and adequate execution and completion of the Works". Thus, there is no power to order variations unless they are necessary. Clause 51.1 (Variations) provides the power to instruct changes that are only "appropriate". For a discussion of the Engineer's power to instruct variations, see under clause 51.1.

"The Contractor shall carry out and be bound by the same." This is subject to review by the Engineer under clause 67.1 (Engineer's decision) and an arbitrator under clause 67.3 (Arbitration).

If instructions are issued late, the provisions of clause 6.4 (Delays and cost of delay of drawings) may apply. For discussion on whether the Engineer may issue variation instructions after substantial completion, see the commentary under clause 13.1 (Work to be in accordance with the contract).

The broad definition of Drawings in clause 1.1(b)(iii) should be noted as this includes matters other than drawings and indeed other than documents. Patterns, samples and models are included.

7.2: This is not a design and build form of contract and, indeed, FIDIC do not

publish such a form for general civil engineering, (although the "Yellow Book", FIDIC's Conditions of Contract for Electrical and Mechanical Works assumes that the contractor will usually accept design responsibility) . Nevertheless it is recognised that a part of the Works may be designed by the Contractor or a subcontractor on his behalf in which case provision must be made for the submission of the design for the Engineer's approval.

A Contractor will be well advised to scrutinise all the contract documents carefully to identify the exact extent of any design obligation imposed upon him. Whilst there is a general statement in clause 8.2 (Site operations and methods of construction) that "the Contractor shall not be responsible...for the design or specification of Permanent Works", a note on a drawing or a paragraph in an obscure corner of the specification could nevertheless "expressly provide" a design obligation.

A Contractor wishing to protect the copyright or confidentiality in his drawings must make special provision. In this connection, see clause 28.1 (Patent rights) which places responsibility for any infringement of patent rights, design trademarks etc upon the Contractor regardless of whether infringement occurred by reason of the Contractor's design or that of the Engineer.

The obligation to provide operation and maintenance manuals appears to be limited to circumstances in which the Contractor has a design responsibility. It will often be necessary, wherever the contract includes plant and machinery, for the Contractor to be obliged to provide the operation and maintenance manuals for that plant and machinery regardless of who designed it. Whilst it is recognised that the obtaining of operation and maintenance manuals and as-built drawings is often difficult at the end of a project, the practicality of making the submission of such manuals and drawings a condition precedent to the grant of substantial completion is to be doubted. The Employer will be keen to take over the works and the Contractor will be facing the possibility of liquidated damages. One questions whether the handing over of the entire project will really depend on these manuals and drawings. It is submitted that the powers given to the

Engineer and the Employer during the Defects Liability Period and with regard to the retention monies would prove sufficient to ensure that these matters are resolved.

The Engineer is apparently given no discretion to dispense with this obligation and indeed clause 2.1(c) (Engineer's duties and/or authority), states that the Engineer has no authority to relieve the Contractor of any obligation. Only the Employer could do so.

The requirement for manuals and drawings to be submitted prior to substantial completion appears to be referrable to the whole of the Works and is not limited to the Section or part which contains the Contractor's design. Thus, it may be argued that there is no prohibition against the granting of taking-over certificates in respect of Sections or parts, only against certifying in respect of the whole of the Works. If this is correct, it is somewhat illogical but mitigates the impracticality referred to above.

7.3 This sub-clause makes it clear that, where the design obligation is placed

upon the Contractor, responsibility will not be affected by the procedure whereby the Engineer considers and approves such design. Whilst it is no doubt arguable that this clause is unnecessary, it helpfully removes a source of dispute. This theme is found throughout the contract, from clause 2.1 (Engineer's duties and responsibilities), which prohibits the Engineer from relieving the Contractor of any of his responsibilities, to clause 61.1 (Approval only by Defects Liability Certificate), which attempts to say that no action of the Engineer, or indeed of the Employer, will relieve the Contractor of any part of his full contractual burden. See also clause 14.4 (Contractor not relieved of duties or responsibilities), clause 17 (Setting-out), clause 37.2 (Inspection and testing) and clause 54.8 (Approval of materials not implied) for examples. The powers to order the opening up of work and the removal of anything sub-standard contained in clause 38.2 (Uncovering and making openings) and clause 39 (Removal of improper work, materials and plant) are very wide and a Contractor wishing to argue that the Engineer is not entitled to exercise them will need compelling evidence. A written instruction might suffice but, as discussed under clause 13, the Employer could challenge its validity in the light of clause 2.1. The written sanction of the Employer, amounting in effect to a variation of the contract, would give the Contractor the necessary security.

The responsibility of the Contractor under the contract for design executed by him, it is submitted, is to be limited to a duty to carry out the design with due care and diligence. There are three relevant sub-clauses:-

- sub-clause 7.2 which requires the subcontractor to submit "such

drawings... as shall be necessary to satisfy the Engineer as to the suitability and adequacy of that design";

- clause 8.1 (Contractor's general responsibility) which requires the

- clause 8.2 (Site operations and methods of construction) which makes the Contractor "fully responsible" where the contract expressly provides that part of the works are to be designed by him.

It is submitted that references in sub-clause 7.2 to "suitability and adequacy" relate to the obligation to satisfy the Engineer and do not amount to an absolute obligation to provide a suitable and adequate design. As to clause 8.2, the responsibility must be read in the context of "the adequacy, stability and safety of all Site operations and methods of construction". A normal reading of that clause would not suggest that the responsibility was intended to go further. Accordingly, one is left with clause 8.1 and a due care and diligence obligation. Thus, if an element of design failed but the Contractor was able to demonstrate that he had used due care and diligence, for example by having state-of-the-art design techniques or specifications, he would not be liable. In this context, see Eckersley v Binnie and Partners (1988) CILL 388 and the Court of Appeal's judgement in relation to the Abbeystead disaster. This level of responsibility conforms to the normal responsibility imposed on the Engineer by his terms of engagement. It might be thought peculiar if the Contractor's design duty was more onerous than that of the Engineer. In this context, it should be noted that the Contractor's liability for the selection of materials, which itself might properly be considered a design function, is an absolute one: see clause 36.1 (Quality of materials, Plant and workmanship).

Two English cases in which the designer's liability was held to be an absolute one, namely to ensure that the works were fit for their purpose were IBA v EMI and BICC (1980) 14 BLR 1, a decision of the House of Lords, and Greaves v Baynham Meikle (1975) 2 Ll R 325. For a case on the Contractor's liability for design carried out by subcontractors, see Cable (1956) Limited v Hutcherson Bros (1969) 43 ALJR 321. For a recent consideration, by the Supreme Court of Queensland, of the standard of responsibility taken by a contractor, see Doug Rea Enterprises v Hymix Australia (1988) B&CL67.