2022-04-07（205）Engineering law and the ICE Contracts

13. “PERMANENT WORKS”, “TEMPORARY WORKS”, “WORKS”. These definitions produce a welcome clarification of the previous edition.

The further category of Temporary Works “designed” or “specified or designed” by the engineer is introduced in cls. 8 and 26 (2) (c).

Other references to “Works” without more in the 4th edition of the conditions are allowed to stand in this edition, combining with this new definition to give the engineer and his aides wide powers to control temporary works, whether designed by the engineer or the contractor’s own temporary works. See cl. 14 for the contractor’s right to extra payment arising out of that control, and p. 52 on liability for injury and damage by temporary works.

The words “together with” in this definition are a little strange. For example, does cl. 12 (1) apply only if physical conditions, etc., are encountered “during the execution of the Permanent Works together with the Temporary Works”, and not during the execution of preliminary temporary works before the permanent works are started? A similar question arises on cls. 18 and 19. Does cl. 51 apply to a variation of temporary works by themselves, or only as incidental to a variation of permanent works?

Does “Site” as defined in cl. 1 (1) (n) include places where temporary works are being executed only if permanent works are also being executed there? See p. 110, N.3 and p. 262, N.9. It is reasonably clear that none of these limitations is intended to apply; that the definition means that both permanent and temporary works are separately included in “Works”.

14. “SECTION”. This definition is relevant to cls. 20, 43, 47, 48, 49 and 60 (5), which provide for early completion of sections of the works, with liquidated damages for delay, and, on completion of the section, passage to the employer of liability for damage, commencement of the maintenance period and release of a proportion of the first half of the retention.

15. “SITE”. For the importance of clearly delineating the site boundaries in the contract documents see p. 135.“ Works” in this definition now include temporary works by cl. 1 (1) (l) above, but see N. 13.

SINGULAR AND PLURAL

1. (2) Words importing the singular also include the plural and vice-versa where the context requires.

HEADINGS AND MARGINAL NOTES

(3) The headings and marginal notes in the Conditions of Contract shall not be deemed to be part thereof or be taken into consideration in the interpretation or construction thereof or of the Contract.16

CLAUSE REFERENCES

(4) All references herein to clauses are references to clauses numbered in the Conditions of Contract and not to those in any other document forming part of the Contract.17

COST

(5) The word “cost” when used in the Conditions of Contract shall be deemed to include overhead costs whether on or off the Site18 except where the contrary is expressly stated.19