Hall & Tawse -v- Strathclyde Regional Council (1990)   © Daniel Atkinson 1999

In Hall & Tawse Construction Ltd -v- Strathclyde Regional Council a Scots case under the ICE 5 Edition the Engineer ordered certain tests to be carried out by an independent laboratory, and a dispute arose as to who should pay for the cost of the tests. There had been no provision made in the Bills of Quantities for such tests but the Employer argued that the tests fell within the ambit of Cl.36(2), and the costs should be borne by the contractor, according to what the tests revealed.

The issue also arose of as to whether, in any event, the Engineer could deduct the cost of the tests from certificates, and whether, if being entitled to reimbursement by the employer, the contractor was entitled to interest on the amount deducted. Further, the court considered the contractor's entitlement to interest of sums claimed for dayworks which had not been certified by the Engineer.  It was held:

1. The power to order tests was limited in two ways: firstly, with reference to the locations at which the testing might take place and, secondly, the contractor's liability for their costs. The cost of tests which were not intended by or provided for in the contract but which were ordered by the Engineer under Cl.36(1) was to be borne by the contractor according to their result. However, all other tests which the engineer might order must be paid for by the employer, no matter what their result, since they were outside the scope of Clause 36. On the facts, the costs of the tests here must be paid for by the employer.

2. The Engineer should not have concerned himself at the certification stage with any sums which might be due to the employer, and, therefore he was not entitled to deduct the cost of the tests from the certificates.

3. As the Engineer had erred in deducting those sums from the certificates, he had failed to certify within the meaning of Cl.60(6), and the contractor was therefore, entitled to interest on the sum deducted.

4. The issue of interest on the sums claimed for dayworks was premature, since there were still matters of fact to be resolved between the parties.

Clause 36 may therefore in summary provides:

36(1) The Engineer can direct tests at locations specified in the contract, even of not provided for in the contract. i.e. place of fabrication or manufacture. on site

and

such other places specified in the Contract

36(3) If the tests shows the works is not in accordance with the contract, the contractor pays.

36(3) All other tests are outside the scope of Clause36(1) and therefore need to be paid for by the employer.

Under Clause 36(2) the contractor is only required to pay for samples if clearly intended by or provided for in the Contract. There is no reference to Engineer's Instructions. Therefore if the Engineer orders samples beyond those required by the specifications, Bills of Quantities and drawings, they must be paid for by the employer.