5.1 THE CONTRACTOR ’ S GENERAL DESIGN OBLIGATIONS (YELLOW AND SILVER...
Reflecting the very different risk allocation in the two Books between
Employer and Contractor, as we discussed in Part I (Section 2.6), the terms of
these obligations differ markedly.
As we saw in connection with the Silver Book, by clause 5.1 the Contractor
is deemed to have scrutinised at an early stage the Employer ’ s Requirements
and is to be responsible for the design of the works and for the accuracy of the
Employer ’ s Requirements (including design criteria and calculations), except
as stated in clause 5.1 sub-paragraphs (a) to (d).
We state those limited exceptions again here, for convenience:
(a) portions, data and information stated to be the Employer ’ s responsibility
in the contract;
(b) definitions of intended purposes of works or any part thereof;
(c) criteria for testing and performance of the completed works;
(d) portions, data or information which cannot be verified by the Contractor,
except as otherwise stated in the contract.
The Yellow Book states the Contractor ’ s general design obligations in quite
different terms. The Contractor shall carry out and be responsible for the
design of the works; he warrants that he and his designers and design subcon-
tractors have the necessary experience and capability; and gives various
undertakings and warranties with respect to the designs he will prepare and
the scrutinising of the Employer ’ s Requirements.
As to errors or incompleteness in those Requirements, the corresponding
provisions of the Yellow Book (clause 5.1) do not make the Contractor
responsible for any such errors or omissions unless an experienced contractor,
exercising due care, would have discovered them when scrutinising the
Employer
’
s Requirements before commencing the works. Otherwise, the
Contractor is entitled to additional time and payment (including profit) for
any delay and additional work resulting from the Employer ’ s errors or omis-
sions in his Requirements (clause 1.9).