CLAUSE 33 : Clearance of Site on Completion

The Contractor shall remove from any part of the site taken over all Contractor's
Equipment, surplus material, rubbish and temporary works which are not
required during the Defects Liability Period. The part of the site taken over must
be left clean and in a workmanlike condition to the Engineer's satisfaction.

This clause, which has been substantially revised for this edition, is to be read in
conjunction with clause 32.1 (Contractor to keep site clear) which imposes
obligations upon the Contractor to dispose of surplus equipment and materials
during the course of the works; and in contrast with clause 54.1 (Contractor's
Equipment etc.) which prohibits the removal of Contractor's Equipment and
materials without the consent of the Engineer. Reading this clause and clause
54.1 together, it may be that the consent of the Engineer is only required for such
removals during the course of the works and not when the works have been
handed over. Other provisions relevant to the removal of equipment etc. are to
be found in clause 63.1 (Default of Contractor) which entitles the Employer to use
the Contractors Equipment etc. after termination by the Employer and clause
69.2 (Removal of Contractor's Equipment) in the case of termination by the
Contractor.

The proviso allowing the Contractor to retain on site materials, equipment etc.
that are necessary during the Defects Liability Period is new to the 4th Edition. It
is necessary because the obligation is tied in the 4th Edition to the taking-over
certificate whereas it is "the completion of the Works", almost certainly meaning
the end of the maintenance period, that is the key in the 3rd Edition. It is an
obvious improvement that the obligation to clear the site as far as practicable
should start upon taking-over.

CLAUSE 34 : Engagement of Staff and Labour

This clause imposes the basic obligation upon the Contractor to obtain and
provide for his own staff and labour.

The clause is the equivalent to clause 34(1) of the 3rd Edition: sub-clauses 34(2)
to (9) have been relegated to Part II, which provides a menu of some 15 optional
clauses dealing with everything from wage rates to burying the dead. It may be
that a degree of coordination between the additions to this clause and those to
clause 54 (Contactor's Equipment, Temporary Works and materials) would be
appropriate.

This clause is to be read in conjunction with clause 16.1 (Contractor's

employees) which refers to the provision by the Contractor of "such skilled, semi-
skilled and unskilled labour as is necessary", and clause 16.2 (Engineer at liberty
to object), which entitles the Engineer to ban any person from the site. Insurance

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obligations in relation to staff and labour are imposed by clause 24.2 (Insurance
against accidents to workmen).

CLAUSE 35 : Returns of Labour and Equipment

This clause, which is taken with minor amendments from the 3rd Edition requires
the Contractor to maintain a record in a prescribed form of his labour and
equipment.

This is the first of a number of clauses requiring the Contractor to maintain

records. The others are:-

- clause 44.3 (Interim determination of extension): interim particulars of

delays having continuing effect;

- clause 52.4 (Daywork): lists of workmen and receipts and vouchers

proving payment;

- clause 53.2 (Temporary records): in support of claims;

- clause 58.3 (Vouchers): all documentation showing expenditure in

relation to provisional sums;

- clause 59.5 (Certification of payment to nominated Subcontractors);

- clause 60.1 (Monthly statement): showing monthly valuation; and

- clause 60.6 (Final statement): to include supporting documents.

Apart from the Engineer's general involvement in and control over the
Contractor's operations, the relevance of this information is primarily in relation to
fluctuations in the event that clause 70.1 (Increase or decrease of costs) is
operating. This clause also provides a method of policing the prohibition in
clause 54.1 (Contractor's Equipment) which prevents the Contractor from
removing equipment from the site without the consent of the Engineer.

Part II provides optional additional clauses for record-keeping in relation to health

and safety and the reporting of accidents.

CLAUSE 36 : Facilities for Testing

All materials, plant and workmanship must be strictly in accordance with the
contract and any Engineer's instructions and tested as the Engineer may require
in accordance with the contract. The Contractor will provide all facilities for
testing and shall supply samples for materials for testing as required by the
Engineer.

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The Contractor will supply samples at his own cost if such supply is envisaged by
the contract.

The Contractor will bear the cost of all tests envisaged by the contract and, in the
case of load tests and tests on executed work, where such tests are described in
sufficient detail to allow a price in the tender.

The Contractor will bear the cost of all other tests if the work or materials fail to
satisfy the Engineer.

Otherwise, the Engineer will award the Contractor an extension of time and
costs.

This clause is virtually unchanged from the 3rd Edition save that sub-clause 36.5
has been added to provide machinery for the payment of the Contractor's costs
of the extra tests and also to provide expressly for extension of time. Previously,
the Contractor would have been obliged to demonstrate that the extra tests were
"extra or additional work" within clause 44.1 (Extension of time for completion).

The broad scheme of the contract is that the Contractor will be paid for any tests
for which he has allowed or should have allowed in his contract price but the cost
of any other tests will be allocated according to the result of the test. This "loser
pays" formula is to be found in clause 38.2 (Uncovering and making openings),
clause 49.3 (Cost of remedying defects) and clause 50.1 (Contractor to search).
This arrangement is bound to raise the suspicion that materials etc. will be ruled
as having failed their tests in circumstances where another result would mean
additional cost to the Employer and the inference of a mistake by the member of
the Engineer's team who ordered the test. This suspicion will be particularly
reinforced where the Engineer susbequently agrees to accept the materials
tested despite such failure. For a comment comparing the treatment of the above
clauses, see under sub-clause 36.5 below.

36.1 "(a)... described in the Contract and in accordance with the Engineer's
instructions". If the Engineer's instructions are inconsistent with the contract,
then, to the extent that they impose a higher standard than that specified, the
Contractor should be entitled to a variation under clause 51.1 (Variations). If the
instruction suggests a lower standard than that prescribed, a problem arises in
relation to clause 2.1 (Engineer's duties and authority) item (c) which states that
the Engineer "shall have no authority to relieve the Contractor of any of his
obligations under the Contract". The Contractor will be in the difficulty that clause
7.1 (Supplementary drawings and instructions) and clause 13 (Work to be in
accordance with the contract) both insist that the Contractor strictly obeys the
Engineer's instructions. The answer may be that the Engineer's authority to
instruct a change in the quality of work is expressed in clause 51.1(c) so that this
would override the limitation within clause 2.1. Thus, clause 36.1(a) may be

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reconciled as the description in the contract would effectively be altered by the
instructions.

In English law, there will be implied into a construction contract a strict duty to
supply good and proper materials, irrespective of fault on the Contractor's part:
see for example Young & Marten v McManus Childs (1969) 1 AC 454.

36.2 The obligation to supply samples is limited to materials: plant and

workmanship are tested in other ways.

36.3 "(a) clearly intended by or provided for in the Contract". This phrase,
which occurs in clauses 36.2 and 36.3 and nowhere else in the contract, could
give rise to some difficulty. As "provided for" deals with express requirements for
tests or samples, "clearly intended by" appears to deal with implicit tests or
samples. In clause 36.1, there is a clear requirement for samples of materials to
be supplied as selected and required by the Engineer. Presumably this is not a
clear intention or provision or else clause 36.2 would make reference to clause
36.1. It appears that the draftsman has tried to relieve the Employer and
Engineer of setting out a requirement for every single sample and test and has
left it to be implied where such samples and tests will be needed. It seems
inevitable that this short-cut will create arguments.

Similarly, clause 36.3(b) seems designed to raise the issue whether the
description of a test was sufficiently detailed to enable a Contractor to allow for it
in his tender. It may well not be obvious from the tender itself whether a
particular test was allowed for and thus an unscrupulous Contractor or Employer
would be free to debate the sufficiency of detail.

Materials etc. are to be subjected to testing "from time to time". This raises the
question whether such tests may occur after the taking-over of the part of the
works concerned. The testing and inspection in clause 37.2 (Inspection and
testing) only takes place "during manufacture, fabrication or preparation" of
materials etc. Under clause 50.1 (Contractor to search), it is only when a defect
has appeared in the works that a search may be undertaken during the defects
liability period. Under clause 38.2 (Uncovering and making openings), the words
"from time to time" recur and raise the same question. It is submitted that, once
the works are taken over, the Engineer's powers under this clause are at an end
save in respect of any outstanding work completed during the defects liability
period pursuant to clause 49.2 (Completion of outstanding work and remedying
defects).

Although the word "measuring" features in the list of items in respect of which the
Contractor is to provide assistance, labour etc. it is submitted that this is not an
intentional reference to the measurement referred to in clause 56.1 (Works to be
measured) whereby the Contractor is to provide only "a qualified representative"
and certain particulars.

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36.4 "In accordance with the provisions of the Contract to the satisfaction of the
Engineer". See the commentary under clause 13.1 (Work to be in accordance
with contract) in relation to a very similar phrase. For other provisions permitting
the Engineer to test work, see clause 38.2 (Uncovering and making openings)
and, where a defect has emerged, clause 50 (Contractor to search).

36.5 As commented above, there are four "loser pays" provisions where the
Contractor is paid for work only if no fault is found for which he is responsible.
There is a strange inconsistency between these clauses. Under this clause, the
Contractor receives time and his costs; under clause 38.2 (Uncovering and
making openings) and clause 50 (Contractor to search), he receives costs only;
and under clause 49.3 (Cost of remedying defects), he receives a valuation
under clause 52 (Valuation of variations). Although the Contractor is probably
able to claim an extension for work executed pursuant to clauses 38.2 and 50,
where appropriate, under clause 44.1 (Extension of time for completion) item (a)
"the amount or nature of extra or additional work", the contract should make the
matter clear. An Employer could well argue, albeit wrongly, that the comparison
shows that the intention was to give time only for extra tests. There is a
difference between the valuation for remedials under clause 49.3 and "costs"
under the other clauses. The definition of "cost" at clause 1.1(g)(i) makes it clear
that profit is excluded. A valuation has no such exclusion.There is no discernable
policy distinguishing these clauses and the answer may be that there is none.

CLAUSE 37 : Inspection and Testing

The Engineer is to have access to the site and off-site factories etc. The
Contractor is to help to obtain such access.

The Engineer may inspect and test materials and Plant and the Contractor shall
obtain permission for such inspections and testing where it is to take place off-
site. Inspection and testing will not relieve the Contractor of his responsibilities.

The Contractor and the Engineer are to agree times and places for inspection
and testing and the Engineer should give at least one day's notice of his intention
to inspect or test. If the Engineer does not attend, the Contractor may carry out
the test and forward the results to the Engineer who must accept them as
accurate. If the test is a failure, or is not ready at the agreed time and place, the
Engineer may issue a rejection, stating his reasons and the Contractor must
remedy the failure. If the Engineer requires a repeat test, the Contractor must
pay any costs incurred by the Employer.

Inspection and testing may be delegated to independent inspectors acting as

assistants under clause 2.4, provided 14 days' notice is given to the Contractor.

This clause has been very considerably extended: the 3rd Edition comprised
only sub-clause 37.1; sub-clauses 37.2 to 37.5 are entirely new. They expand
and clarify the powers in clause 36.1 (Quality of materials, plant and

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