2022-04-06（204）Engineering law and the ICE Contracts

(b) Quantities contract. The ordinary features of a lump sum contract may be altered by making the quantities in the bill of quantities part of the description of the works to be done. Then the contractor is entitled to his lump sum for carrying out the quantities of work set out in the bill, but to extra payment for any work beyond that.

Note that in a quantities contract the rule that the employer is not taken to warrant that the works can be completed in accordance with the contract documents may still be important in relation to the documents other than the bill of quantities—the last cited case was decided on a quantities form. And the pure lump sum principle still applies to the individual rates in the bill. For example, the rate per cubic metre of excavation includes upholding the sides of excavations and keeping excavations free of water specifically by note 9 to Class E of the Civil Engineering Standard Method of Measurement (see p. 213), in which case, however unexpectedly much of those operations there may be, the contractor is not ordinarily entitled to an increase in the rate, and has only very limited rights under cl. 12 of these Conditions.

(c) Measure and value contract:

“The whole of the work will be remeasured, and payment made for the work actually done”.

Here the bill of quantities is incorporated in the contract principally as a schedule that fixes the rates of payment. With the 5th edition the I.C.E. contract is now firmly measure and value, but the quantities in the bill may be the foundation of a claim by the contractor (p. 210).

The essential legal differences between a measure and value and a quantities contract are small. They occur where the contractor makes a mistake in extension or totalling or a deduction from the total of the bill of quantities, see fully pp. 12–15. The general binding effect of the individual rates and the rule that the employer is not taken to warrant the contract documents (above) apply also to this form.

(d) Cost—plus a fixed fee or percentage for profit, with or without a deduction or bonus if the cost is above or below a fixed target. m

A private client should always be warned by the engineer that the bill total in a quantities or measure and value contract is, in effect, only an estimate. His attention should be drawn to the importance of comparing the reputations and the individual rates of the various tenderers and to the cases listed in ch. 11 in which he may become liable for extra payment.

PERMANENT AND TEMPORARY WORKS

1(1)(j) “Permanent Works”13 means the permanent works to be constructed completed and maintained in accordance with the Contract;

(k) “Temporary Works”13 means all temporary works of every kind required in or about the construction completion and maintenance of the Works;

(l) “Works”13 means the Permanent Works together with the Temporary Works;

(m) “Section”14 means a part of the Works separately identified in the Appendix to the Form of Tender;

(n) “Site”15 means the lands and other places on under in or through which the Works are to be executed and any other lands or places provided by the Employer for the purposes of the Contract;

(o) “Constructional Plant” means all appliances or things of whatsoever nature required in or about the construction completion and maintenance of the Works but does not include materials or other things intended to form or forming part of the Permanent Works.