Dear

This letter refers to the Letter Ref.. dated . of the Employer regarding improving the
quality of the works, we would like to give following comments
!nder "## $%&, 'the #ontractor shall give prompt notice to the Engineer, with a copy to the
Employer, of any error, omission, fault or other defect in the design or specification for the
(orks, which he discovers when reviewing the #ontract or e)ecuting the (orks*.
+n order to avoid late reali,ation of defects in Detailed Design Drawings which can cause
significant delay in e)ecuting the construction works, we would like to request you to revise the
calculation sheet and the detailed design drawings to make sure they are consistent. +f any
inconsistency -etween calculation sheet and design drawings are found out, please give notice to
Engineer for timely instruction. .oreover, the #ontractor is kindly requested to revise the
"eneral /iew of all -ridges to make sure it satisfy the real site conditions, if any unsuita-ility is
found out, please advise Engineer in timely manner.
0our understanding and cooperation would highly appreciated.
1est regards,

2ttachment
&. #alculations 3heets.
FIDIC Red Book Contractors claim for
incorrectly detailed drawings: what does the
contract imply?
The 4+D+# #onditions of #ontract for #onstruction for 1uilding and Engineering (orks
Designed -y the Employer 5'the red -ook*6 places the design o-ligation on the employer 5e)cept
where otherwise specified in the contract6. 2ccording to the definition of 'drawings* in su-%
clause &.&.&.7 'means the drawings of the (orkThe 4+D+# #onditions of #ontract for
#onstruction for 1uilding and Engineering (orks Designed -y the Employer 5'the red -ook*6
places the design o-ligation on the employer 5e)cept where otherwise specified in the contract6.
2ccording to the definition of 'drawings* in su-%clause &.&.&.7 'means the drawings of the
(orks, as included in the #ontract and any additional and modified drawings issued -y 5or on
-ehalf of6 the Employer in accordance with the #ontract.*
During the e)ecution of a contract the employer usually issues further drawings and instructions
to the contractor at various times and very often these contain mistakes which potentially could
delay the contractor in e)ecuting the works. The question that is addressed in this article is 'what
are the contractor8s remedies should the drawings contain a mistake and this results in delay to
the work and9or incurs the contractor in additional cost:*
Discovering errors or defects in the drawings
3u-%clause ;.& states 'The #ontractor shall e)ecute and complete the (orks in accordance
with the #ontract and with the Engineer8s instructions, and shall remedy any defects in the
(orks. * 3hould a party discover any 'error or defect of a technical nature in a document which
was prepared for use in e)ecuting the works*, it shall 'promptly give notice* to the employer 'of
such error or defect* 5su-%clause &.$6.
The tacit term
(hen read together, su-%clauses ;.& and &.$, mean it is su-mitted that the contractor cannot
proceed to e)ecute the works if it has discovered an error or defect of a technical nature in a
Document such as an '2pproved 4or #onstruction 52.4.#.6 ' drawing. Therefore, the contract
contains a tacit term that the employer8s instructions must -e correct, 5ie. not contain any errors6
in order for the contractor to proceed with e)ecuting the works. 2 tacit term or implied term was
descri-ed -y #or-ett 2<2 in 2lfred .c2lpine = 3on 5>ty6 Limited v Tvl >rovincial
2dministration &?@; A 32 BC7 526 BA&%BAD as 'an une)pressed >rovision of the contract
which derives from the common intention of the parties, as inferred -y the #ourt from the
e)press terms of the contract and the surrounding circumstances. +n supplying such an implied
term the #ourt, in truth, declares the whole contract entered into -y the parties.* +mplying a tacit
term such as that under discussion in the 4+D+# agreement passes the test in that the implication
must -e necessary and not merely reasona-le. This is confirmed as far -ack as &$?& in a
Eudgment passed -y the Fueen8s 1ench in Gamlyn and #o / (ood and #o &$?&, DF1 ;?;. This
decision was su-sequently quoted in 32 .utual 2id 3ociety v #ape Town #ham-er of
#ommerce &?7D & 32 B?$ 526 7&BD 2 term is sought to -e implied in an agreement for the
very reason that the parties failed to agree e)pressly thereon. (here the parties have e)pressly
agreed upon a term and given e)pression to that agreement in the written contract in
unam-iguous terms no reference can -e had to surrounding circumstances in order to su-vert the
meaning to -e derived from a consideration of the language of the agreement only*.
The consequences of this tacit term, in the event of the contractor not notifying the employer of
an error which it has discovered is further e)plored -y Hael ". 1unni in his -ook 'The 4+D+#
4orms of #ontract* 5Ard edition, p. &?;6, in which he states that the engineer owes a duty of care
in respect of the design and supervision of the works and would incur a lia-ility to the contractor
if his design is such that a competent contractor could not have avoided any resultant damage.
1unni goes on to quote Ildschool v "leeson 5#onstruction6 Ltd &?@7 ; 1uild LR where <udge
3ta-- F#, held as follow
'The contractor cannot seek to pass the -lame for incompetent work on to the consulting
engineer on the grounds that he failed to intervene to prevent itthe responsi-ility of the
consulting engineer is for the design of the engineering components of the works and his
supervisory responsi-ility is to his client to ensure that the works are carried out in accordance
with that design. 1ut if, as was suggested here, the design was so faulty that a competent
contractor in the course of e)ecuting the works could not have avoided the resulting damage,
then on principle it seems to me that the consulting engineer responsi-le for that design should
-ear the loss.*
Remedies in the contract
+t must -e noted that su-%clause &.$ 5care and supply of documents6 does not contain a condition
entitling the contractor to claim an e)tension of time for completion and9or additional payment in
the event that the discovered error delays the contractor or costs additional money to rectify.
The contractor8s remedies for a delay and additional cost are found in su-%clause $.; 5e)tension
of time for completion 6 and more specifically su-%clause $.;5a6 J in instances where the
engineer issues an instruction to remedy the error in its design and the instruction amounts to a
variation in accordance with the contractK alternatively su-%clause L 5e)tension of time for
completion6 in instances when the contractor is delayed, prevented or impeded -y the employer,
the employer8s personnel or the employer8s other contractors on the site from completing the
works where the error has this effect. 3u-%clause $.;5a6 should -e read in conEunction with clause
&A 5variations6.
+f the new drawing or instruction remedies the error found in the e)isting drawing it may
constitute a variation under su-%clause &A.& 5right to vary6. +f the drawing 5which is an
instruction under the contract6 fits the description of a variation then su-%clause &A.A 5variation
procedure6 provides the procedure for implementing such a variation. 3u-%clause &D.A
5evaluation6 then sets out the method in which the variation is qualified. The contractor is still
o-liged to notify the engineer in terms of su-%clause DC.& of its intention to claim additional
payment and9or an e)tension of time for completion within the D$%day time period.
Conclusion
(e quite often find contractors trying to enforce a claim for an error in the design -ased on su-%
clause &.? 5delayed drawings or instructions6 for the simple reason that provision in su-%clause
&.$ 5care and supply of documents6 discussed a-ove, is often overlooked. The difference,
although it may appear o-vious, -etween a claim for a delayed drawing or instruction and one
-ased on an error in the drawing is significant -ut the effect may -e the same.
The consequences of the contractor not notifying the engineer of an error or defect which it has
discovered will -e at its own risk.
Editor: Neil Coertse
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