2022-04-28（225）Engineering law and the ICE Contracts

INSPECTION OF SITE

11. (1) The Contractor shall be deemed to have inspected and examined the Site and its surroundings and to have satisfied himself1 before submitting his tender2 as to the nature of the ground and sub-soil (so far as is practicable and having taken into account any information in connection therewith which may have been provided by or on behalf of the Employer)3,4 the form and nature of the Site5 the extent and nature of the work and materials necessary for the completion of the Works the means of communication with6 and access to the Site the accommodation he may require7 and in general to have obtained for himself all necessary information (subject as above-mentioned) as to risks contingencies and all other circumstances influencing or affecting his tender.

SUFFICIENCY OF TENDER

(2) The Contractor shall be deemed to have satisfied himself before submitting his tender as to the correctness and sufficiency of the rates and prices stated by him8 in the Priced Bill of Quantities9 which shall (except in so far as it is otherwise provided in the Contract) cover all his obligations under the Contract.10

1. CONTRACTOR’S PRE-TENDER INVESTIGATIONS. Unfortunately it is not possible to say precisely what investigations a prudent contractor should make prior to tender, to ensure that he covers all his obligations under this clause in his tender price and will have a cl. 12 claim if the actual conditions differ from those foreseen.

A contrast is drawn in this clause between the required investigation of the site (“Site” is defined in cl. 1 (1) (n), but clearly in this context is not intended to include the sub-soil) and the “nature of the ground and sub-soil”. The contractor is required to inspect the site but is not specifically bound to inspect the ground and sub-soil, only “to have satisfied himself…(so far as is practicable)” as to its nature. This distinction implies that the contractor may satisfy himself about the nature of sub-soil without any actual opening into and inspection of it—e.g. by inspecting excavations in the neighbourhood, enquiries from the local contractors and examination of geological and other records. It is important to preserve carefully the evidence that these investigations have been carried out.

Where there is not sufficient reliable information to be gathered in this way, it appears that the contractor is bound to satisfy himself as to the nature of the sub-soil by trial pits or boreholes, “so far as is practicable”. The magnitude of the investigations which it is practicable for a contractor to carry out must be limited particularly by the time available for tender. An incidental argument often made by contractors is the impracticability of a number of tenderers digging up private lands or highways (often with no right to do so) and which may be in use. Employers should at least make a practice of notifying tenderers of the arrangements which have been made to give them access to the site to carry out investigations, and tenderers should be required to have insurance in force against any damage or injury caused in the course of investigations.

Special considerations which arise where the employer supplies site information are discussed below.

Unfortunately all that can be said on the legal position does not add up to anything like a clear code of good practice for pre-tender investigations. The guide in each case is what an experienced contractor would reasonably do to satisfy himself in accordance with his onerous obligations under this clause. For a further discussion, in the context of claims, refer to p. 436.

2. “BEFORE SUBMITTING HIS TENDER”. It appears from this wording that changes in the physical conditions, etc., after the date of tender, even if known to the contractor, are to be disregarded in adjudicating on a cl. 12 claim. It may be argued that if the change in conditions became known to the contractor at a time when he was free to withdraw his tender (p. 3), then by entering into the contract he must be taken to have waived his rights to claim for the change. However, on balance it seems that the contractor is entitled to argue that he was under no duty to alter his tender, because of this wording.

The contractor has no right to claim merely on the grounds of a change in conditions or circumstances after the date of his tender, and before formation of the contract, even if unknown to him, unless he has a cl. 12 claim. However, if the employer has represented some matter to the contractor before tender, but before the contract is made owing to a change of circumstances the representation becomes false to the knowledge of the employer, or for the first time he learns that it was false when made or ceases to have reasonable grounds to believe it is true, then he is bound to notify the contractor of the change of circumstances so that the contractor may amend his tender. If the employer does not do so the contractor has a remedy in damages. rr