8 UNFORESEEABLE DIFFICULTIES/PHYSICAL CONDITIONS

4.4.8 Unforeseeable difficulties/physical conditions: Clause 4.12

We looked at this topic in Part I (Section 2.6). But it may be convenient to

summarise the basic differences between the two design-build forms here.

In the Silver Book, as we saw, the Contractor bears the risk of unforeseen

difficulties unless this is otherwise stated in the contract (clause 4.12). He is

otherwise deemed to have obtained all necessary information about risks,

contingencies and other circumstances which could influence or affect the

works. By signing the contract, he accepts total responsibility for having fore-

seen all difficulties and costs of successfully completing the works.

By contrast, the Contractor under clause 4.12 of the Yellow Book may

obtain an extension of time and additional payment (his cost but not profit) if

he encounters physical conditions which were unforeseeable in the sense that

no experienced contractor by the date for tender could reasonably be expected

to have foreseen them.