Adjudication
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KEYWORDS: |
ICE 5 Edition, Clauses 8(1) and 13(1), design, physical impossibility |
In Norwest Holst Construction Limited -v- Renfrewshire Council (1996) Court of Sessions, Norwest entered into a contract under ICE 5 Edition for the construction of a bridge in Paisley, Scotland. The obligations under Clause 8 were supplemented by Clause 141 which provided that Norwest would exercise reasonable skill and care in the design of the piled foundations and incorporate the designed piles into the permanent works, ensuring that the piles would be fit for the purpose for which they were intended to be used. A further Clause 137 laid down the criteria which Norwest was required to meet in designing the piled foundations. Clause 1 of the Specification defined the scope of the works to include construction of the bridge and design and construction of piled foundations. The Bill of Quantities included items for Norwest to price its design and separately for construction of the piles to its design.
Norwest examined many alternative designs for the piles, but found that it could not produce a design which could be constructed. In particular the limitations in headroom for construction of piles did not allow the necessary rock penetration to be achieved.
The first question for the Court was whether in the interpretation of Clause 13(1) and 8(2) of the contract "Works" included "the design of the Works" within its meaning.
It was recognised that Clause 13(1) qualifies the contractor's obligation to construct the Works, and Norwest wished to take advantage of this qualification.
It was held the "Works" must in certain contexts include the contractor's work in designing the bearing piles. However Clause 13(1) required the contractor to "construct" and it was difficult to accept that this applied to design. More importantly the draftsman had used the same phrase in Clause 8(1) as in Clause 13(1) namely, "the contractor shall construct, complete and maintain the Works", so that the phrase had the same scope in each of these clauses. But Clause 8(1) could not be intended to cover Norwest's obligation to design the bearing piles since that obligation was set out in Claus 141. It was held that this clause did not amend Clause 8(1) but added to it. The exception in Clause 8(2) came into play, but that did not mean that the Contractor's design obligations were one of the obligations envisaged in Clause 8(1).
It was held therefore that Norwest's design responsibilities were not within the scope of their obligation to "construct, complete and maintain the Works" in Clause 13(1).
The Council argued that where the contractor has design responsibility of the kind found in Clause 141, that Clause 13(1) had no application in respect of that aspect of the works. It was argued that it made no sense to relieve the contractor of the strict obligation to build works for the design of which he had himself been responsible in terms of the contract.
This was not accepted. Clause 13(1) did not justify the qualification which it contained by reference to the incidence of the obligation under the contract to design the Works. Therefore even where the contractor designs part of the works, Clause 13(1) applies to that aspect of the Works.
The problem here was that, even though they could be designed, the bearing piles could not be constructed as part of the permanent works so long as the cofferdam within which the piles were to be installed remained as in the original drawings and Specification. The contractor by virtue of Clause 13(1) had given no warranty that he could construct the piles or any other part of the Works. The question which then arose, was whether the Engineer was contractually responsible for resolving the issue of impossibility, since the cofferdam design was his responsibility.
It was held that though the fact that the piling could not be constructed emerged at the time when the piling was being designed, that was irrelevant. The Engineer was required to act, to devise a solution and give directions and instructions, if the Council required the works to be constructed. The position in this regard was different from Shanks & McEwan. In the event the Engineer modified the design of the abutment making them monolithic with the wingwalls and stated specifically that this was to be treated as a variation under Clause 51(1). The Engineer was required to act, to devise a solution and give directions and instructions, if the Council required the works to be constructed. The position in this regard was different from Shanks & McEwan. In the event the Engineer modified the design of the abutment making them monolithic with the wingwalls and stated specifically that this was to be treated as a variation under Clause 51(1).