substantial completion.

This is because the project will generally be occupied by

the Employer and in use and the Contractor will have been permitted pursuant to
clause 54.1 (Contractor's equipment, temporary works and materials; exclusive
use for the works) to demobilise all his equipment and labour save to the extent
necessary to complete outstanding works and remedy defects. Finding support
for this commonly held and common-sense view in the terms of the contract is
difficult. Perhaps the best argument is that clauses 7.1 and 51.1 refer
respectively to instructions and variations that are "necessary". It might be
argued that once the project is substantially completed, variations could not be
necessary unless to overcome a fault not caused by the Contractor in which case
clause 49.2 applies. The problem with such an argument is that "necessary" in
clause 51.1 is entirely unqualified. If it appears during the Defects Liability Period
that some part of the design is inadequate and needs to be amended in order to
achieve the purpose of the project, it would be difficult to resist the variation on
grounds of necessity.

It is submitted that this issue needs to be resolved: this could be achieved either
by making it clear that variations may not be instructed after the issue of the
taking-over certificate or by way of a provision that instructions may not be issued
after substantial completion where the Contractor has removed from the site, with
the consent of the Engineer pursuant to clause 54.1, the equipment, temporary
works or materials which would have been necessary to carry out the variations.
Although a Contractor who had removed equipment could no doubt claim for the
cost of remobilising in order to execute such a variation, this would often mean
serious disruption to the Contractor's plans and other projects and is thus
undesirable. If the Engineer does not have power to order variations, the
Employer is still at liberty to negotiate with the Contractor for the execution of the
additional works.

Clause 2.3 (Engineer's authority to delegate) makes provision for the delegation
of powers to the Engineer's Representative and enables the Contractor to
question any communication from the Engineer's Representative and to receive
the Engineer's confirmation or otherwise. Clause 2.5 (Instructions in writing) also
governs the Engineer's own instructions, for example in requiring such
instructions to be in writing or, if oral, confirmed within the time limit specified.
Clause 2.4 (Appointment of assistants) permits assistants to issue instructions
under limited circumstances. In conformity with this clause, such instructions are
deemed to have been given by the Engineer's Representative. The reference in
the current clause to the Engineer's Representative is superfluous and after
clause 15.1 (Contractor's superintendence), no more is heard about him.

If the instructions are given late, the Contractor may have a claim under clause
6.4 (Delays and cost of delay of drawings).

CLAUSE 13.1 (Work to be in accordance with Contract)

The final sentence of this clause has been changed from :-
"The Contractor shall take instructions only from the Engineer or, subject to the
provisions of clause 2, from the Engineer's Representative."

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to:-
"The Contractor shall take instructions only from the Engineer (or his delegate)."

In the main work, it was commented that the references to the Engineer's
Representative in clauses 13.1 and 15.1 (Contractor's superintendence) were
unnecessary given that the Engineer has power under clause 2.3 (Engineer's
authority to delegate) to delegate to the Engineer's Representative any of his
duties and authorities. Those responsible for the 1992 amendments obviously
did not consider that they could simply delete the superfluous words. No doubt
they feared that he emphatic language, "shall take instructions only from the
Engineer", could be taken to override the effect of an Engineer's delegation
under clause 2.3 of his authority to issue instructions. As this sentence is the
only occasion that purports specifically to restrict an action to the Engineer
himself, the draftsman's caution is perhaps not inappropriate. Contrast clause
15.1 (Contractor's superintendence), where a simple deletion of the reference to
the Engineer's Representative was considered sufficient.

CLAUSE 14 : Work Programme

Within a set time of the Letter of Acceptance the Contractor is to submit for
approval his programme in the form required by the Engineer. He is also to
provide a written method statement as and when required by the Engineer.

If the Engineer considers that progress does not match the approved
programme, he may require the Contractor to produce a revised programme
showing how the works are to be completed on time.

Within a set time of the Letter of Acceptance, the Contractor is to submit a

detailed cash flow estimate of payments due to the Contractor and will revise the
estimate quarterly if the Engineer so requires.

The Engineer's consent to programmes, method statements or cash flow

estimates will not relieve the Contractor of any of his contractual responsibilities.

Sub-clauses 14.1, 14.2 and 14.4 are taken, with changes mainly of vocabulary,
from the 3rd Edition. Sub-clause 14.3 is entirely new.

14.1 It is a feature of this contract that the Employer and the Engineer take a
close interest in the intentions of the Contractor. Compare for example a turn-key
contract where the Employer may have no representative and is not overly
interested in how the Contractor achieves the desired result provided that on the
due date the required product is supplied. Such an approach is not always
appropriate in civil engineering where ongoing quality control is often necessary
due, at least in part, to the high proportion of the works which are covered up by
subsequent operations. This clause requires the Contractor to tell the Engineer in
what order and, if so requested, by what methods the works are to be executed.

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From a practical point of view, this enables the Engineer to programme his
detailed design and the Employer will need information to plan the giving of
possession of the various parts of the site to the Contractor. The programme
supplied pursuant to this clause will define the Employer's duty to give
possession pursuant to clause 42.1 (Possession of site and access thereto).
Failure to give possession in accordance with the programme could result in the
Contractor being entitled to an extension of time and costs. In contrast, under
clause 6.4 (Delays and cost of delay of drawings), a further notice to the
Engineer making a specific request for a particular drawing or instruction is
almost certainly required before time and costs may be obtained. See the
commentary under sub-clauses 6.3 and 6.4 as to whether a marked-up
programme could amount to sufficient notice. The degree of detail to be provided
is to be determined by the Engineer: this could be important. For the Employer a
detailed programme will define closely his duties in relation to giving possession
of the site and in relation to the provision of drawings by the Engineer. It will be
more obvious when a breach of those duties has occurred. For the Contractor, it
must be appreciated that he not is bound by his programme: he may call for
drawings under clause 6.3 (Disruption of progress) as he wishes and may
proceed with any part of the site of which he has possession. The constraint is
that the Employer's obligation to give possession is governed by the programme
(or 'reasonable proposals'). He will have no claim for late possession if he has
not signalled his change of plan with a revised programme under sub-clause 14.2
or revised proposals under clause 42.1.

If the Contractor's programme or method statement is a contractual document,

any inability to execute the works in accordance with that programme or method
could give rise to a claim by the Contractor for a variation and costs. See for
example the case of Yorkshire Water Authority v Sir Alfred McAlpine (1985) 32
BLR 5 where the contract incorporated the Contractor's proposed method of
upstream working which proved impossible: it was held that the Contractor was
entitled to a variation and payment for the change to downstream working.
Tenderers will invariably be asked for an outline programme to be submitted with
their tenders. Clause 42.1 (Possession of site and access thereto) reflects the
Employer's ability to specify the parts of the site of which the Contractor is to be
given possession and the order in which such parts are to be given to him. The
Employer would be unwise to impose such limitations unless absolutely
necessary as the order of the release of parts of the site may amount to the
Employer dictating the programme of the works which will cause the Employer to
be responsible in the event that the Contractor, through no fault of his own, is
unable to work to that programme.

If the Contractor submitted a programme with his tender, that programme may
well form part of the contract as "the Tender" is one of the documents contained
in the definition of Contract. This could give rise to the argument that the tender
programme is a contract programme with the consequences set out above. As
this is clearly not the purpose or intention behind a tender programme, the
parties, particularly the Employer, would be well advised to ensure that the

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version of the tender that is accepted by the Letter of Acceptance is one which
excludes the tender programme.

In relation to methods, an Employer may well choose his Contractor on the

strength of the types of machinery and methods proposed by the individual
tenderers. Having selected a tenderer on that basis, an Employer may well wish
to ensure that the tendered methods and machines are used on site and will
therefore include the tender method statement in the contract document. Again,
the result is that the Employer takes the risk if, through no fault of the Contractor,
the method or those machines are not capable of executing the works. It is
submitted that clause 8.2 (Site operations and methods of construction), which
seeks to place full responsibility for methods of construction on the Contractor,
does not affect this situation where the method is part of the contract.

For commentary on the effect of the submission of an optimistic programme, see

under clause 47 (Liquidated damages for delay).

Under clause 51.1 (Variations), the Engineer is entitled to order a change to "any
specified sequence or timing of construction". Thus, if the programme was part
of the contract, it would represent a specified sequence or timing and any change
to that could entitle the Contractor to a variation and payment. As to a change of
method, clause 51.1(c) deals with changes to "the character or quality or kind of
any such work". Alternatively, a change in method could be covered by an
omission and an addition of alternative work under items (b) and (e). The
Contractor is unlikely to object, provided he is paid, as the greater responsibility
taken on by the Employer for method, the less the risk remaining on him.

The ultimate sanction ensuring compliance with this clause is determination

under clause 63.1 (Default of Contractor) item (d) for a flagrant neglect to comply
with an obligation. More immediately, where the contract is silent as to
possession of the site, the Employer will not be under an obligation to give
possession under clause 42.1 (Possession of Site and access thereto) without
such a programme, or the 'reasonable proposals' referred to in that clause.
Compare the sanction provided in relation to clause 10.1 (Performance security)
by clause 60.2 (Monthly payment) whereby no interim payment may be made
until the security has been supplied.

It is a serious criticism of this clause that there is no provision addressing a

refusal of consent by the Engineer to the Contractor's programme. In view of the
importance of the programme under clause 42 (Possession of Site) and implicitly
under clause 46.1 (Rate of Progress) and generally, there should be a procedure
or timetable or, as a minimum, recognition of the possibility of consent being
refused. Clause 42.1 should refer to the programme as approved. Overmuch
reliance should not be placed on the 'honeymoon' period at the start of the
project. For a provision dealing with rejection by the Engineer, see ICE 6th
clause 14(1)(c).

The time for submission of the programme is to be inserted in Part II.

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14.2 This clause should be read together with clause 46.1 (Rate of progress)
whereby the Engineer may require a Contractor in culpable delay to accelerate in
order to complete on time. Under the current sub-clause, the fact that progress
does not conform to the programme could be due to any reason whether or not it
entitles the Contractor to an extension of time. If the Contractor had been
granted an extension of time, the Engineer would require a programme showing
the new completion date. If the Contractor is in culpable delay, the Engineer
would require a programme showing what steps the Contractor would have to
take in order to complete on time. In order to oblige the Contractor to work to the
accelerated programme, notification under clause 46.1 would be necessary.

The wording of this clause would allow an Engineer to call for a revised
programme in the event that the Contractor was substantially ahead of the
approved programme. As discussed under clause 47.1 (Liquidated damages for
delay), in English law, a Contractor is not entitled to impose greater obligations
upon the Employer by way of the granting of possession of the site or upon the
design team in their production of drawings by accelerating the work, for
example, in order to obtain a bonus. Thus, an Engineer could call for a revised
programme where a Contractor was substantially ahead and threatening to make
claims under clause 6.4 (Delays and cost of delay of drawings) in order to
ascertain what would amount to a reasonable time-table for the production of
drawings.

14.3 Cash-flow estimates are normally essential to the Employer to enable him
to plan the funding of the works. The Contractor is best placed to carry out this
exercise as the programme of works is within his control. There is no obvious
sanction if the estimate is inaccurate, even if the estimate was designed to
mislead the Employer. The time for submission of the estimate is to be inserted
in Part II

14.4 This clause is consistent with clause 2.1(c) (Engineer's duties and
authority) whereby the Engineer "shall have no authority to relieve the Contractor
of any of his obligations". It is also consistent with the scheme of the contract
whereby the Employer takes no responsibility for the practicability of the
Contractor's programme and methods of work. See also clause 7.3
(Responsibility unaffected by approval), clause 17 (Setting-out) and clause 54.8
(Approval of materials not implied) for other examples. See also clause 61.1
(Approval only by Defects Liability Certificate).

CLAUSE 15 : Contractors Superintendence

The Contractor shall provide all necessary management and supervision

throughout the project and for as long as the Engineer may consider necessary
including a full time competent and authorised representative approved by the
Engineer. The representative will receive instructions from the Engineer and the
Engineer's Representative. If the Engineer withdraws his approval, the

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