Page 235 - Civil Engineering Project Management, Fourth Edition

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Variations and claims
costs. The problem is that borings often reveal a range of ground conditions, but
unless numerous borings are taken, they seldom disclose the degree of per-
sistence and exact location of one particularly difficult condition. In fact, if an
experienced resident engineer and the experienced engineer find themselves
surprised by the ‘unforeseen event’ it is difficult to maintain that the contractor
should have foreseen it. The problem has to be solved on the basis of reason-
ableness. A contractor could not reasonably be expected to foresee ground as
uniformly bad when trial borings only show it to be of variable quality, good
and bad.
The advantage of Clause 12 is that it permits many unforeseen conditions
to be dealt with efficiently by a contractor with no dispute or problems of
payment arising. It offers fair payment to a contractor so he will co-operate
with the engineer in dealing with the conditions as effectively and economically
as possible. Thus the employer pays only that which is necessary for dealing
with the unexpected problem. Quite often the employer has to pay no more than
he would have done had the condition been known beforehand and written
into the contract. Thus both employer and contractor are fairly dealt with if
Clause 12 is properly interpreted.
The ECC conditions, (see Section 4.2(f)) include for unforeseen physical
conditions on a similar basis, classifying it as ‘a compensation event’ (Clause
60.1(12)). The test is worded, however, slightly differently from the ICE con-
ditions, being conditions:

which an experienced contractor would have judged at the Contract Date to have
such a small chance of occurring that it would have been unreasonable for him to have
allowed for them.

The effect may be much the same as for the ICE wording but has not yet been
tested to the same extent by the courts. The outcome for an employer may,
however, differ as the boundary between what is covered by the contractor’s
prices and what is not, may have altered by the difference in definitions.

17.9 Payment for unforeseen conditions

A problem arising with Clause 12 claims is assessing the cost of overcoming the
unforeseen conditions. When the contractor has notified a claim under Clause
12(2) he has to give details ‘as soon as practicable’ of how he is overcoming or
intends to overcome the unforeseen conditions, with an estimate of the cost
and delay they will involve (12(3)). The engineer can step in and instruct the
contractor what to do (12(4)). Since the contractor has notified he is making
a claim, the provisions of Clause 53 also apply, which require the contractor to
keep records of his work in connection with his claim, and send ‘a first interim
account’ giving particulars of the amount claimed to date, followed by further
accounts at intervals required by the engineer. The contractor is entitled to