workmanship) and clause 39.1 (Removal of improper work, materials or plant).

The principal effect is to give the Engineer an express power to reject materials
prior to their arrival on site. Whilst in practice an Engineer who indicated that he
would instruct the removal of materials which he had inspected or tested off-site,
would not normally be ignored, these express powers reinforce the Engineer's
role as quality controller. In addition, provision is now made for the Employer to
recover the costs of repeated tests which may well provide an incentive to
Contractors and their suppliers to ensure a satisfactory result on the first
occasion.

37.1 "Persons authorised" could include the Engineer's Representative under

clause 2.2 (Engineer's Representative), one of his assistants under clause 2.4
(Appointment of assistants), an independent inspector under sub-clause 37.5 or,
presumably, a representative of the Employer. In addition, as these clauses deal
with delegation, it is submitted that the Engineer may give written authority to any
other person who he wishes to be present at the inspection or testing.

The clause stops short of requiring the Contractor to procure access which is
perhaps strangely reticent, particularly given that in clause 37.2, "the Contractor
shall obtain permission" for the Engineer's inspection and testing. The
Contractor will no doubt be able to make it a term of the sub-contracts and supply
contracts that the Contractor, the Engineer and others should have access for
inspection and testing. The present position is that the Contractor would be in
breach of contract for failure to secure permission for the Engineer to visit a
supplier's factory to inspect and test but not if the affording of every facility and
assistance failed to gain access for the Engineer. In practice, the two are so
near to being inseparable that the necessity for separate sub-clauses and
separate degrees of obligation must be questionable.

37.2 "...shall not release the Contractor from any obligation". The Contractor's
principal obligations in relation to materials and plant are set out in clause 36.1
(Quality of materials, Plant and workmanship) but see also clause 8.1
(Contractor's general responsibilities) and clause 13.1 (Work to be in accordance
with contract).

37.3 The purpose of the words "as provided in the Contract" is obscure. The
Engineer's powers to test appears in clause 36.1 (Quality of materials, Plant and
workmanship) and is repeated in sub-clause 37.2 in relation to "the materials and
Plant to be supplied under the Contract". The use of the phrase "as provided in
the Contract" rather than "as referred to in clause 37.2 above", raises the
question as least of whether this clause refers to any sub-division of the materials
and plant. Compare, for example, the phrase "clearly intended by or provided
for" in clause 36.2 (Cost of samples) and clause 36.3 (Cost of tests).

At first sight, the first two sentences of this sub-clause seem incompatible.
Presumably, the intention of the draftsman is that the Contractor and the
Engineer agree a time when inspection or testing will take place by the

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Contractor alone or, if the Engineer so chooses, by or witnessed by the Engineer.
Thus, if he chooses to attend, the Engineer must give the requisite notice. That
notice must be in writing in accordance with clause 1.5 (Notices, consents etc.).
If the Engineer is unable to attend on one occasion, his right to have access "at
all reasonable times" under sub-clause 37.1, will mean that his opportunity to
inspect is not lost, even though he will have missed the test.

If the Engineer is not represented at the test, he does not lose all possibility of
rejecting the material as, firstly, he may instruct the test not to proceed with the
risk that the instruction will entitle the Contractor to further payment under clause
52 (Valuation of Variations), or secondly, he could reject the materials or plant
under sub-clause 37.4 if the certified results did not comply with the contract.

37.4 Costs will be incurred by the Employer by the repetition of tests if he is

obliged to pay the Engineer or his delegates and authorised persons additional
sums and expenses for attending the repeated tests. The cost of the test itself
will be borne by the Contractor under clause 36.3 (Cost of tests) and clause 36.4
(Costs of tests not provided for) unless the repeated tests fall under the latter
clause and demonstrate that the materials etc are in accordance with the
contract. This would produce the result that the amount determined by the
Engineer under clause 36.5 (Engineer's determination where tests not provided
for) could be deducted again or reduced by the Engineer under this sub-clause.
One answer to this curious situation would be if a repeated test falls within clause
36.3 being a test "clearly intended by or provided for in the contract". For the
reasons why this tempting solution may not be sustainable, see the commentary
under clause 36.

In the event of a rejection notice, the Contractor is to "make good the defect or
ensure that rejected materials or Plant comply". In practise this means replacing,
amending or treating the materials, plant etc. to overcome the Engineer's
objection. However, it is only "rejected materials or plans" that may be the
subject of repeated tests. Thus, if the tested item has been replaced, it may be
open to a Contractor to argue that the Employer is not entitled to his costs in
respect of that repetition and, if clause 36.4 (Costs of tests not provided for)
applies, then he is entitled to be paid for the repeated test and even obtain an
extension of time.

Under clause 63.1 (Default of Contractor), a failure by the Contractor to comply

with a notice issued pursuant to this clause within 28 days is an act of default
which entitles the Employer to determine. As mentioned in the commentary
under clause 63, the choice of clauses to receive specific mention as grounds for
termination seem bizarre. In this case, the inspection of materials off-site may be
taking place months before their intended incorporation into the works with the
result that there may be no particular urgency. Moreover, the result of the
rejection may be that alternative materials have to be located and ordered from a
distant source. The required compliance is that the Contractor should promptly
make good the defect or ensure that rejected material or plant comply with the
contract. Read without reference to clause 63, a reasonable interpretation of that

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clause would be that unless the Engineer required a repeat of the tests, the
supplier's only obligation was to ensure that when the materials etc were
delivered to site, they conformed with the contract and the Engineer's objection
had been overcome. In the event that the rejection was caused by the fact that
the test was not ready at the time and place agreed, it is altogether more difficult
to see what it is that the Contractor is to do within 28 days. Any Engineer asked
to certify pursuant to clause 63.1 that there has been a failure of compliance
under this sub-clause may have an unenviable task.

37.5 See the commentary under clause 2 (Engineer and Engineer's

Representative) and the apparent breadth of the phrase "any person authorised
by him" commented upon under sub-clause 37.1.

CLAUSE 38 : Inspection of part of works

The Contractor is to give the Engineer an opportunity to check any foundations or

other parts of the Works which are about to be covered up. The Contractor
should notify the Engineer who should either attend or decline to do so.

The Contractor is to open up and make good any part of the Works as the
Engineer instructs. If clause 38.1 has been complied with and the part inspected
is found to be in accordance with the contract, the Contractor will be paid for the
opening-up and making good.

The principal alteration to sub-clause 38.1 in this edition is the reference to "part
of the Works" rather than "work" as in the 3rd Edition. Sub-clause 38.2 has been
translated into the phraseology of the 4th Edition but the principles of the clause
remain unaltered.

38.1 The draftsman has decided not to impose time limits on the notice and
inspection procedure, relying instead on the co-operation between Contractor
and Engineer. Whilst this faith, which is not generally reflected in the contract,
may often be justified, the fact that the Engineer is entitled to cause reasonable
delay to a Contractor who is ready to proceed with the covering of foundations, is
likely to cause difficulty, particularly if the covering up is repeated many times
over a period of several weeks. The parties to this contract may well feel it
sensible to agree a more formal procedure, including a right for the Contractor to
proceed if the Engineer does not attend at the appointed hour, in order to avoid
delays.

A "part of the Works" is not defined so that there will always be scope for debate
as to when this sub-clause applies. In clause 48.2 (Taking-over of Sections or
parts), "any substantial part" is referred to. Here, no guidance is given and, in
view of the fact that the recovery of costs under clause 38.2 depends upon this
sub-clause having been complied with, the Contractor will be well advised to
achieve agreement with the Engineer on what amounts to a relevant part.

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This sub-clause should be read in conjunction with clause 37.1 (Inspection of
operations) which gives the Engineer access to the site as well as clauses like
clause 36.1 (Quality of materials, plant and work) and clause 8.1 (Contractor's
general responsibilities).

38.2 This clause should be read in conjunction with clause 50 (Contractor to

search) whereby the cause of defects, shrinkage or other faults may be
investigated. From the Employer's point of view, it would be beneficial if this sub-
clause and clause 50 could be linked so that if defective workmanship in one
area gave rise to a problem, a reasonable amount of opening-up in other areas
likely to be similarly affected could be undertaken at the Contractor's expense.
Thus, for example, if one pile under a bridge was found to be unstable, due to a
faulty concrete mix the cost of opening up nearby piles in order to check the
concrete mix used there could properly, it is submitted, be chargeable to the
Contractor. As it is, no matter how justified the opening up and no matter how
great the risk of a repeat of the defect, the Contractor is to be paid if no defect is
in fact found.

For a comment comparing the treatment of this clause with the other "loser pays"
clauses, clause 36.4 (Cost of tests not provided for), clause 49.3 (Cost of
remedying defects) and clause 50 (Contractor to search), see under clause 36.5
(Engineer's determination where tests not provided for). This clause should also
be read with clause 39.1 (Removal of improper work, materials or Plant) which
provides an express power to have remedied any defects discovered .

"... the Engineer may from time to time instruct ..." For comment on the ability of
the Engineer to instruct variations and tests after taking over, see the comments
under clause 13.1 (Work to be in accordance with the contract) and clause 36.1
(Quality of materials, plant and workmanship).

It should be noted that to recover his costs, the Contractor must show that both
sub-clause 38.1 has been complied with and that the works were properly
executed. He does not recover his costs of the opening-up, even if the works
were perfect, if the Engineer was not invited to inspect. It should also be noted
that an examination by the Engineer under sub-clause 38.1 will provide the
Contractor with no defence in the event that the works are found on opening up
to be defective. See for example clause 37.2 (Inspection and testing) where
"such inspection or testing shall not release the Contractor from any obligation
under the Contract". If, upon such examination, the Engineer indicates
willingness to accept work that is not fully up to specification, the Contractor
should obtain a variation in writing to that effect or follow the clause 2.5
(Instructions in writing) procedure in relation to oral instructions although neither
of these would rule out all possibility of challenge by the Employer: see under
clause 51.1 (Variations).

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CLAUSE 39 : Removal / Replacement of material / plant

The Engineer may order the removal and replacement of any materials, plant,
work or design by the Contractor which are not in accordance with the contract.

If the Contractor fails to comply with the Engineer's instructions within the time
stated or a reasonable time, the Employer may employ others to execute the
work at the Contractor's expense.

Sub-clause 39.1 is similar to the 3rd Edition although the reference to design in
item (c)(ii) is new. Sub-clause 39.2 has been substantially amended not least by
giving the Contractor "a reasonable time" to comply with the instruction.

39.1 This clause is theoretically unnecessary as the Contractor is obliged to

produce a result in accordance with the contract and would not be entitled to
payment for defective work, nor substantial completion if the defect was serious
nor a Defects Liability Certificate. The role of the clause is therefore to give the
Engineer a more proactive quality control capability, forcing the Contractor to
remove defective work at once rather than at a time convenient to the Contractor.

In this sub-clause, the instructions may be issued if "in the opinion of the
Engineer" work or materials are not in accordance with the contract. The
Engineer's opinion does not feature in clause 37.4 (Rejection) or clause 38.2
(Uncovering and making openings). The significance of the opinion may be that
if the Engineer is shown to be wrong and that the works in fact conformed with
the contract, the Contractor will be entitled to treat the instruction as a variation
and claim payment under clause 52 (Valuation of variations). If the clause had
said that the Engineer was only entitled to issue instructions where the works and
materials did not comply with the contract, an Employer could argue in the above
instance that the instruction was unauthorised and invalid and deny liability for
the cost of the works executed. For a discussion of the significance of the
Engineers opinion in another context, see the commentary to clause 63.1
(Default of Contractor).

Whilst this clause gives the Engineer wide powers, which seem to remove any
duty upon the Employer to mitigate the loss flowing from what may be a minor
breach of the specification, in practice it is more likely that, where possible, minor
faults will be left or allowed for and a deduction will be made in the valuation of
the work.

A failure to comply with an instruction under this sub-clause within 28 days of its
receipt is a ground for termination by the Employer under clause 63.1 (Default of
Contractor). As commented under clause 37.4 (Rejection) the selection of
clauses to be specifically mentioned in clause 63.1 seems to owe nothing to
logic. Here, the time for compliance with an instruction may be specified in the
instruction and could well be longer than the 28 days referred to in clause 63.1.
Furthermore, the Employer's remedy in the case of a failure to respond by the

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