| Date | 5 February 1997 |
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| Judgment | Norwest Holst Construction Limited -v- Renfrewshire Council 1996 GWD-40-2261 |
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| The Issue | Responsibility for competing client and contractor design. |
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| Implication |
Under an ICE 5th Edition Contract the engineer will be required to instruct changes to its design of the general works where a contractor designed element cannot be constructed due to incompatibility with the remainder of the works. |
printWhere a contract is let on the basis that the works will be partly designed by the employer or its agents, and partly designed by the contractor, the contract requires to be very clear on how these provisions are to interact. This type of problem was examined in relation to an ICE 5th Edition contract in the case of Norwest Holst Construction -v- Renfrewshire Council. Norwest entered into a contract with Renfrewshire to construct a new railway underbridge between Paisley and Johnston on the Glasgow to Ayr railway line. A dispute arose in relation to the construction of piled foundations for the project. Some background to the contract, which had been amended by particular conditions, is necessary. Clause 8 (1) was in the standard form and stated "The contractor shall subject to the provisions of the contract construct complete and maintain the works ...". This clause was required to be read in conjunction with particular condition 141 which stated "In addition of his obligations under the conditions of contract clause 8 the contractor shall be responsible for exercising all reasonable skill and care in ... the design of the piled foundations ... (and) incorporating the designed piles into the permanent works ensuring that the piles will be fit for the purpose for which they are intended to be used". Clause 13 (1) contained the general obligation of the contractor to construct complete and maintain the works to the satisfaction of the engineer "save insofar as it is legally or physically impossible ..." Sub clause (3) of this clause provides for extension of time or additional cost in the event of instructions or directions issued by the engineer. As the design of the works progressed the contractor found itself in an impossible situation. They considered they could not construct pile foundations in accordance with the contract. Their design required the piles to be inserted into the rock for a depth of 3 metres to obtain the requirements of the specification, but with the piling equipment that could be used within the constraints of the site, a depth of only 0.5 metres could be obtained. The only solution which was eventually arrived at was that the substructure of the bridge would be redesigned so that the abutments and wing walls were monolithic and consequently the piles under the wing walls could be used as well as those under the abutment to carry the loads from the bridge deck. The dispute between the parties was whether this alteration to a monolithic construction should be instructed or directed by the engineer under clause 13 and treated as a variation to that part of the works and paid for accordingly. In short the problem was that although the contractor could design piles which would carry the necessary loads, they could not be constructed as part of the permanent works so long as the rest of the design (the responsibility of the engineer) remained as in the original drawings and specification. The starting point of the debate before the court was the proposition that if contractors undertake to design and build certain works, in this case the bearing piles, to specified criteria, the contractors are to be taken to have satisfied themselves in advance that this can be done for the price. If they find they cannot in fact carry out what they have undertaken to do then they will be in breach of contract. As a general proposition this was not disputed. The issue which divided the parties was rather whether the opening words of clause 13 (1) (save insofar as it is legally or physically impossible) altered the position. The first question to answer therefore was whether the word "Works" in clause 13 (1) included the contractor's design. The court held that this was not the case, and that accordingly the contractor's design responsibilities were not a component part of their obligations to "construct complete and maintain" the Works under clause 8 (1). Neither was design within their obligation to "construct complete and maintain" the works in accordance with clause 13 (1). But this was the academic part of the question since all this told the parties was that the contractor's obligation to design was not subject to the proviso concerning legal or physical impossibility. The crucial point was whether the construction of the piles would be subject to this proviso, and this was answered quite differently. The court held that Norwest's obligation to "construct complete and maintain" the Works including the piles were covered by clause 13 (1) and its qualification. Whatever design was adopted, the piles could not be "physically" constructed because of the constraints imposed by the original design of the abutments. In that situation, because of the terms of clause 13 (1), Norwest would come under no contractual obligation to construct the piling and they could have had no responsibility for devising a solution to the difficulties. Accordingly they were entitled to expect an instruction from the engineer which would fall to be treated as a variation under clause 51 (1).
CJ-9705
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