The Contractor is to give the Engineer an opportunity to check any foundations or o t h e r p a r t s o f t h e W o r k s w h i c h a r e a b o u t t o b e c o v e r e d u p . T h e C o n t r a c t o r should notify the Engineer who should either attend or decline to do so.T h e C o n t r a c t o r i s t o o p e n u p a n d m a k e g o o d a n y p a r t o f t h e W o r k s a s t h e Engineer instructs. If clause 38.1
has been complied with and the part inspectedis found to be in accordance with the contract, the Contractor will be paid for theopening-up and making good.The
principal alteration to sub-clause 38.1 in this edition is the reference to "partof the Works" rather than "work" as in the 3rd Edition. Sub-clause 38.2 has beentranslated into the phraseology of the 4th Edition but the principles of the clauseremain
unaltered.3 8 . 1 T h e d r a f t s m a n h a s d e c i d e d n o t t o i m p o s e t i m e l i m i t s o n t h e n o t i c e a n d in spection procedure, r elying instead on the co -operation between Contractor and Engineer. W hilst this faith, which is not generally reflected in the contract,may often be justified, the fact that the Engineer is entitled to cause reasonable delay to a Contractor who is ready to proceed with the covering of foundations, islikely to cause difficulty, particularly if the covering up is repeated many
timeso v e r a p e r i o d o f s e v e r a l w e e k s . T h e p a r t i e s t o t h i s
c o n t r a c t m a y w e l l f e e l i t sensible to agree a more formal procedure, including a right for the Contractor toproceed if the Engineer does not attend at the appointed hour, in order to avoid delays.A "part of the Works" is not defined so that there will always be scope for debateas to when this sub -clause
applies. In clause 48.2 (Taking -over of Sections or parts), "any
substantial part" is referred to. Here, no guidance is given and, inview of the fact that the recovery of costs under clause 38.2 depends upon thiss u b - c l a u s e h a v i n g b e e n c o m p l i e d w i t h , t h e C o n t r a c t o r w i l l b e w e l l a d v i s e d t o achieve agreement with the Engineer on what amounts to a relevant part.This sub -clause should be read in conjunction with clause 37.1 (Inspection of operations) which gives the Engineer access to the site as well as clauses likeclause 36.1 (Quality of mat erials, plant and work) and clause 8.1 (Contractor's general responsibilities).3 8 . 2 T h i s c l a u s e s h o u l d b e r e a d i n c o n j u n c t i o n w i t h c l a u s e 5 0 ( C o n t r a c t o r
t o s e a r c h ) w h e r e b y t h e c a u s e o f d e f e c t s , s h r i n k a g e o r o t h e r f a u l t s m a y b e investigated. From the Employer's point of view, it would be beneficial if this sub-
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c l a u s e a n d c l a u s e 5 0 c o u l d b e l i n k e d s o t h a t i f d e f e c t i v e
w o r k m a n s h i p i n o n e area gave rise to a problem, a reasonable amount of opening-up in other areaslikely to be similarly affecte d could be
undertaken at the Contractor's expense.Thus, for example, if one pile under a bridge was found to be unstable, due to a f a u l t y c o n c r e t e m i x t h e c o s t o f o p e n i n g u p n e a r b y p i l e s i n o r d e r t o c h e c k
t h e c o n c r e t e m i x u s e d t h e r e c o u l d p r o p e r l y , i t i s s u b m i t t e d , b e c h a r g e a b l e t o t h e Contractor. As it is, no matter how justified the opening up and no matter how great the risk of a repeat of the defect, the Contractor is to be paid if no defect isin fact found.For a comment comparing the treatment of this clause with the other "loser
pays"c l a u s e s , c l a u s e 3 6 . 4 ( C o s t o f t e s t s n o t p r o v i d e d f o r ) , c l a u s e 4 9 . 3 ( C o s t o f remedying defects) and clause 50 (Contractor to search), see under clause 36.5(Engineer's determination where tests not provided for). This clause should alsobe read with clause 39.1 (Removal of improper work, materials or Plant) which provides an express power to have remedied any defects discovered ."... the Engineer may from time to time instruct ..." For comment on the ability of the Engineer to instruct variations and tests after taking over, see the commentsunder clause 13.1 (W ork to be in accordance with the contract) and clause 36.1(Quality of materials, plant and workmanship).It should be noted that to recover his costs, the Contractor must show that boths u b -
c l a u s e 3 8 . 1 h a s b e e n c o m p l i e d w i t h a n d t h a t t h e w o r k s w e r e p r o p e r l y e xecuted. He does not recover his costs of the
opening-up, even if the workswere perfect, if the Engineer was not invited to inspect. It should also be noted t h a t a n e x a m i n a t i o n b y t h e E n g i n e e r u n d e r s u b - c l a u s e 3 8 . 1 w i l l p r o v i d e t h e Contractor with no defence in the event that the works are found on opening upto be defective. See for example clause 37.2 (Inspection and testing)
where"such inspection or testing shall not release th e Contractor from any
obligation u n d e r t h e C o n t r a c t " . I f , u p o n s u c h e x a m i n a t i o n , t h e E n g i n e e r i n d i c a t e s w i l l i n g n e s s t o a c c e p t w o r k t h a t i s n o t f u l l y u p t o s p e c i f i c a t i o n , t h e
C o n t r a c t o r s h o u l d o b t a i n a v a r i a t i o n i n w r i t i n g t o t h a t e f f e c t o r f o l l o w t h e c l a u s e 2 . 5 (Instructions in writing) procedure in relation to oral instructions although neither of these would rule out all possibility of challenge by the Employer: see under clause
51.1 (Variations).
CLAUSE 39 : Removal / Replacement of material / plant
The Engineer may order the removal and replacement of any materials, plant,work or design by the Contractor which are not in accordance with the
contract.If the Contractor fails to comply with the Engineer's instructions within the time s t a t e d o r a r e a s o n a b l e t i m e , t h e E m p l o y e r m a y e m p l o y o t h e r s t o e x e c u t e t h e work at the Contractor's expense.
Sub-clause 39.1 is similar to the 3rd Edition although the reference to design initem (c)(ii) is new. Sub-clause 39.2 has been substantially amended not least bygiving the Contractor "a reasonable time" to comply with
the instruction.3 9 . 1 T h i s c l a u s e i s t h e o r e t i c a l l y u n n e c e s s a r y a s t h e C o n t r a c t o r i s o b l i g e d t o p r o d u c e a r e s u l t i n
a c c o r d a n c e w i t h t h e c o n t r a c t a n d w o u l d n o t b e e n t i t l e d t o payment for defective work, nor substantial completion if the defect was seriousnor a Defects Liability Certificate. The role of the clause is therefore to give theEngineer a more proactive quality control
capability, forcing the Contractor to remove defective work at once rather than at a time convenient to the Contractor.I n t h i s s u b - c l a u s e , t h e
i n s t r u c t i o n s m a y b e i s s u e d i f " i n t h e o p i n i o n o f t h e E n g i n e e r " w o r k o r m a t e r i a l s a r e n o t i n
a c c o r d a n c e w i t h t h e c o n t r a c t . T h e Engineer's opinion does not feature in clause 37.4 (Rejection) or clause 38.2 (Uncovering and
making openings). The significance of the opinion may be thatif the Engineer is shown to be wrong and that the works in fact conformed withthe
contract, the Contractor will be entitled to treat the instruction as a variationand c laim payment under clause 52 (Valuation of variations). If the clause had said that the Engineer was only entitled to issue instructions where the works andmaterials did not comply with the contract, an Employer could argue in the aboveinstance that the ins truction was unauthorised and invalid and deny liability for t h e c o s t o f t h e w o r k s e x e c u t e d . F o r a d i s c u s s i o n o f t h e s i g n i f i c a n c e o f
t h e E n g i n e e r s o p i n i o n i n a n o t h e r c o n t e x t , s e e t h e c o m m e n t a r y t o c l a u s e 6 3 . 1 (Default of Contractor).W hilst this clause gives the Engineer wide powers, which seem to remove anyduty upon the Employer to mitigate the loss flowing from what may be a minor breach of the specification, in practice it is more likely that, where possible, minor faults will be left or allowed for and a d eduction will be made in the valuation of the work.A failure to comply with an instruction under this sub-clause within 28 days of itsreceipt is a ground for termination by the Employer under clause 63.1 (Default of C o n t r a c t o r ) . A s c o m m e n t e d u n d e r
c l a u s e 3 7 . 4 ( R e j e c t i o n ) t h e s e l e c t i o n o f c l a u s e s t o b e
s p e c i f i c a l l y m e n t i o n e d i n c l a u s e 6 3 . 1 s e e m s t o o w e n o t h i n g t o logic. Here, the time for compliance with an instruction may be specified in theinstruction and could well be longer than the 28 days referred to in clause 63.1.Furthermore, the Employer's remedy in the case of a failure to respond by the Contractor is carefully set out in sub-clause 39.2 where the Contractor is given "areasonable time" where no time is specified by the Engineer. In some instances,where items are not critical, six months may be a reasonable time. Yet, if 28days go past, the Contractor is at risk of termination. See also the commentary under clause 63.1.This clause
should be read in conjunction with clause 17 (Setting -out) wherebythe Contractor has power to order the re-execution of works due to
dimensionalor alignment errors. Page 129 of 264
A new feature of the 4th Edition is the reference to design at item (c)(ii); this fills agap because an element of the works may be wrong despite the materials, plantand workmanship being in accordance with the contract. Before this edition, theEmployer would have had to base his rejection of badly designed work on breacho f t h e r e s p o n s i b i l i t y g i v e n t o t h e C o n t r a c t o r f o r d e s i g n u n d e r c l a u s e 8 . 2 ( S i t e o p e r a t i o n s a n d m e t h o d s
o f c o n s t r u c t i o n ) . S e e a l s o c l a u s e 7 . 2 ( P e r m a n e n t Works designed by Contractor). The inclusion of work or materials in an interimc e r t i f i c a t e d o e s n o t m e a n t h a t t h o s e w o r k s a n d m a t e r i a l s a r e i n a n y
s e n s e approved. See clause 61.1 (Approva l only by Defects Liability Certificate) and the commentary
thereunder.3 9 . 2 T h e s a n c t i o n p r o v i d e d b y t h i s s u b -
c l a u s e i s f a r m o r e i m m e d i a t e a n d effective than the threat of termination which is unlikely to be in the interests of either party. The threat of the disruption and expense of alternative contractorse n t e r i n g t h e s i t e a n d e x e c u t i n g a p a r t o f t h e w o r k s w o u l d p r o v i d e a v e r y
r e a l incentive to the
Contractor.F o r o t h e r c l a u s e s i n v o l v i n g w o r k b y o t h e r c o n t r a c t o r s , s e e c l a u s e 3 1 (Opportunities for other contractors), clause 49.4 (Contractors failure to carry outinstructions) and clause 63.1 (Default of Contractor).If the work or materials had been paid for in interim certificates, the Employer'sdeduction would amount to the entire cost of the other contractor; if not paid for the deduction would be
limited to any additional cost to the Employer of having an alternative contractor carry out the works.