6.2 DESIGN RESPONSIBILITY THE DESIGN-BUILD FORMS IMPOSE ON THE CONTR...

The design-build forms impose on the Contractor the obligation to ‘design,

execute and complete the works in accordance with the Contract’ so that, when

defined in the Contract ’ (clause 4.1). We will look in more detail at what is meant

by ‘fit for purpose’, and some of the difficulties that can arise in practice, in Part II.

The contractor gives the same undertaking as to compliance with the

contract documents (and applicable laws – clause 5.3).

Under the Silver Book, however, the contractor is responsible even where

the Employer ’ s Requirements contain errors and even where the contractor

could not reasonably have been expected to detect them, with certain very

limited exceptions.

We see this from clause 5.1 of the Silver Book, by which the contractor is

deemed to have scrutinised, prior to the Base Date,

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the Employer ’ s Require-

ments and to be responsible for the design of the works and for the accuracy

of the Employer ’ s Requirements (including design criteria and calculations)

with certain limited exceptions.

Clause 5.1 provides that the employer:

●

is not to be responsible for any error, inaccuracy or omission of any kind in

the Employer ’ s Requirements (as originally included in the contract); and

●

is not to be taken to have given any representation of accuracy or com-

pleteness of any data or information,

●

except as stated in four specific situations listed in clause 5.1 (which we

will look at very shortly).

Further, any data or information received by the contractor, from the

employer or otherwise, will not relieve the contractor of his responsibility for

the design and execution of the works.

Thus, even if the employer provides the contractor with data or other

information, and the contractor reasonably relies on it in designing the works,

the contractor remains responsible for any error or inaccuracy in that infor-

mation or those data.

The exceptions to the contractor ’ s otherwise comprehensive responsibility

are stated in clause 5.1 sub-paragraphs (a) to (d). They are:

(a) portions, data and information stated to be the employer ’ s responsibility

in the contract;

(b) definitions of intended purposes of the works or any part of the works;

(c) criteria for testing and performance of the completed works;

(d) portions, data or information which cannot be verified by the contrac-

tor, except as otherwise stated in the contract.

The interpretation of these exceptions could be problematic: for example,

it might be difficult to say for sure whether some data or information could

not be verified by the contractor. But it is clear that the contract intends the

range of exceptions to the contractor ’ s comprehensive design responsiblity

to be very limited.

The corresponding provisions of the Yellow Book (clause 5.1) do not contain

a similar responsibility for the accuracy of the Employer ’ s Requirements. If any

errors should exist which an experienced contractor exercising due care would

not have discovered when scrutinising the Employer ’ s Requirements before

commencing the works then the contractor is entitled to additional time and

payment (including profit) in the event of any resulting delay or additional cost.

This covers a potentially wide range of cases; against the Silver Book ’ s greater

certainty, the Yellow Book inclines to a more even-handed approach to risk.

We set out in Table  2.1 below a summary of the main differences between

the Silver Book and the Yellow Book on contractor risk in relation to design

and to unforeseen physical conditions.

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Table 2.1 The FIDIC Silver and Yellow Books: Contractor risk

Risk

Silver Book

Yellow Book

Extension of time and additional

Unforeseeable difficulties/

No extension of time

or additional payment

payment (but not profit) if conditions

physical conditions

for Contractor unless

were ‘Unforeseeable’ (in that not

otherwise stated in

reasonably foreseeable by an

contract (cl 4.12).

experienced by the date of tender –

cl 1.1.6.8) (cl 4.12).

Not a defined Employer’s

A defined Employer’s Risk under cl

‘Operations of the forces

of Nature’