2022-06-20（272）Engineering law and the ICE Contracts

12. “OTHER THAN A DESIGN PROVIDED BY THE CONTRACTOR PURSUANT TO HIS OBLIGATIONS UNDER THE CONTRACT”. The complications where the contractor takes on himself or is requested (he cannot be ordered) by the engineer to submit a design for part of the works which the engineer is bound to design himself are discussed at length in N. 2 on p. 179.

Notes to Clause 21:

1. INSURANCE OF “ANY UNFIXED MATERIALS OR OTHER THINGS DELIVERED TO THE SITE FOR INCORPORATION” IN THE WORKS OR TEMPORARY WORKS. A more precise definition than the “materials…and other things brought on to the Site” in the 4th edition.

2. “TO THEIR FULL VALUE” replaces the previous “to the full value of such works executed from time to time”. Refer to p. 360. 

3. “THE PERIOD STIPULATED IN CLAUSE 20 (1)”. INSURANCE IN RESPECT OF OUTSTANDING WORK UNDER CLAUSE 48. It is problematical whether the words in quotations are sufficiently clear to bind the contractor to insure his liability for the care of outstanding work which he has undertaken to complete under cl. 48 (p. 99, N.4). The contractor certainly should insure for such liability, and for damage to the works caused in completing the outstanding work for which he is made liable by cl. 20 (2) (next note).

4. “ANY LOSS OR DAMAGE OCCASIONED BY THE CONTRACTOR IN THE COURSE OF ANY OPERATION…UNDER CLAUSES 49 AND 50”. The reference to 50 is a necessary addition to the words of the previous edition. Cl. 49 refers to outstanding work under cl. 48, as well as maintenance work, so any damage caused by the contractor in completing such work must be covered by his insurance under this clause. As to damage to the outstanding work itself see the last note.

5. APPROVAL OF INSURER AND TERMS OF REFERENCE “SHALL NOT BE UNREASONABLY WITHHELD” BY THE EMPLOYER…The contractor has no right to arbitrate before completion of the works so as to have refusal of approval reversed. His remedy is to do what is necessary to obtain the employer’s approval, and to claim damages for any extra premium or other cost resulting from the employer’s breach of contract in acting unreasonably. 

Notes to Clause 22:

1. “ALL LOSSES”. This duty on the contractor to indemnify the employer against losses principally covers damage to the employer’s property (other than the works themselves—next note). At the same time it may have wider application. For example, if the contractor becomes entitled to extra payment under cl. 12 for artificial obstruction by property which the contractor damages and has to make good in order to complete the contract works, the contractor may be bound under this clause to pay back to the employer any payment recovered under cl. 12 for the cost of making good the damage to the property (but not cost received under cl. 12 for consequential delay to the works). It is proper that this clause should override cl. 12, because the contractor should be insured against this liability.