that the Engineer acts correctly.

He must, however, ensure that the Engineer is

free to act fairly and correctly. Thus there will not be a breach of contract on the
part of the Employer on every occasion where an arbitrator reverses a decision
of the Engineer. For a discussion of one practical consequence of this, see the
commentary under clause 63.1 concerning the consequences if an Employer
terminates on the strength of a certificate of default by the Contractor given by
the Engineer where that certificate is found to be incorrect by an arbitrator.

The express requirement in sub-clause 2.6 that the Engineer act impartially adds
to the Employer's duty in relation to procuring proper certification. As the
Engineer is not a party to the contract, the clause must impose an obligation
upon the Engineer's employer. It is therefore submitted that the Employer is
given the additional responsibility of ensuring that the Engineer is not only free to
act impartially but that he does so. A distinction has to be drawn between
fairness or correctness and impartiality. Because so many of the Engineer's
decisions are discretionary, there is often no objectively correct decision. A
decision will ultimately be correct if it goes unchallenged or if an arbitrator does
not feel it necessary to overturn that decision. Impartiality is more concerned with
the means by which the Engineer arrives at his decision. He is obliged to
approach the matter in an even-handed way, an obligation reinforced by the
requirement for due consultation. He must weigh in his mind the interests both of
the Contractor and the Employer without regard to the fact of engagement by the
Employer and leaving out of account any pressure brought to bear either by the
Employer directly or by the potential consequences of a particular decision under
his terms of engagement. It is submitted that the Employer will be in breach of his
obligation not only if he endeavours to cause the Engineer to favour his interests
over those of the Contractor but also if the Engineer is obviously doing so and
the Employer fails to take steps to remedy the position. Technically, the
Employer would also be in breach if he failed to take steps if the Engineer was
favouring the Contractor. Such a state of affairs would be very unlikely to last
long and is equally unlikely to be the subject of complaint by the Contractor.

The liability of a certifier such as the Engineer directly to the Contractor has been
the subject of consideration by the Courts over the years. The House of Lords in
Sutcliffe v Thackrah (1974) AC 727 held that a certifying Architect did not have
the sort of immunity against a disgruntled contractor that a judge or arbitrator
would enjoy. More recently, the Court of Appeal in Pacific Associates Inc v
Baxter (1989) 3 WLR 1150 held that the Engineer under a much-amended form
of FIDIC did not owe a duty of care to the contractor. Although that decision may
have been influenced by the particular wording of the contract under
consideration, a Hong Kong court in Leon Engineering and Construction v Ka
Duk Investment Co. Ltd (1989) 47 BLR 139 came to the same conclusion on a
standard form with no unusual wording. In both cases, the court was influenced
by the existence of an arbitration procedure, the purpose of which was to enable
the contractor to obtain redress in the event that the certifier made a mistake.

Leading cases relevant to the Employer's duty in relation to the Engineer include
Perini Corporation v Commonwealth of Australia (1969) 12 BLR 82 when the

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Supreme Court of New South Wales found implied terms that the Employer must
not interfere with the proper performance by the certifier of the duties imposed
upon him by the contract and that the Employer is bound to ensure that the
certifier performs those duties. The English Court of Appeal came to similar
decisions in Croudace v Lambeth (1986) 33 BLR 20 and Lubenham Fidelities v
South Pembrokeshire District Council (1986) 33 BLR 39. In the latter case, the
Court of Appeal expressed the opinion that a certifier acting in bad faith would
probably make himself directly liable to the contractor. The Perini and Lubenham
cases are also authority for the view that the Employer does not warrant the
correctness of the certifier's decisions.

(b) It is right for the Employer to make known to the Contractor from the
outset any terms in the Engineer's terms of engagement which could impact
upon the Contractor. Thus, this clause provides for disclosure in Part II of any
prior approvals that the Engineer needs in order to act. This clause should not
however be treated as an encouragement for such obstacles to be placed in the
Engineer's way. These conditions do not encourage the requirement of prior
approval as clause 69.1 (Default of Employer) makes a refusal of such an
approval in relation to a certificate, a ground for termination by the Contractor. It
is also sensible that the Contractor is not obliged to check that necessary
approvals have been obtained for any given action by the Engineer. If the
Engineer acts without such prior approval, that will be a matter between the
Engineer and the Employer and may well amount to a breach of the Engineer's
terms of engagement.

It is an innovation of these conditions that the Engineer is obliged to consult with

the Employer and the Contractor under some 21 clauses: such consultation does
not in any way relieve the Engineer of his obligation to act impartially under
clause 2.6 (Engineer to act impartially). Part II provides an optional clause to deal
with emergency situations allowing the Engineer to instruct without obtaining the
prior approval of the Employer. This clause is not, it is submitted, necessary and
indeed runs counter to the important principle that the Contractor need not
concern himself with whether the Engineer has in fact obtained approval. In this
context, see clause 64.1 (Urgent remedial work).

A question raised by this approvals procedure is whether the absence of a

requirement for approval may be taken as evidence that the Engineer is
authorised to act as agent for the Employer in all other respects. The answer, it is
submitted, is in the negative. The purpose of the inclusion in Part II of any
restraints upon the Engineer is by way of warning to the Contractor and is
confined to limits upon "the authority specified in or necessarily to be implied
from the Contract". The lack of any general agency is emphasised by item (c) of
this sub-clause. So, for example, the Engineer would not have authority to order
acceleration by the Contractor other than in accordance with clause 46.1 (Rate of
Progress). Accordingly, the Contractor must be careful to ensure that any action
by the Engineer is either within the authority specified in or necessarily to be
implied from the contract or expressly authorised by the Employer.

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This clause has been adapted by ICE 6th which has made the list of matters
requiring approval determinative of the matters in respect of which the Engineer
must act impartially. Clause 2(8) of ICE 6th requires the Engineer to act
impartially in respect of all matters which are not so listed.

(c) As the Engineer is normally considered to have a dual function under the
contract, to act as the Employer's agent in certain respects as well as certifier,
potential problems may always arise as to the extent of the Engineer's authority
as agent. For example, if the Engineer were to ask or order the Contractor to
accelerate other than in accordance with clause 46.1 (Rate of progress), the
Contractor would be unwise to comply with such order or request without
checking with the Employer that the Engineer was duly authorised to make such
request on the Employer's behalf. Thus, in this clause, it is made clear that the
Engineer has no authority to waive any obligation of the Contractor. See also
clause 7.3 (Responsibility unaffected by approval), clause 14.4 (Contractor not
relieved of duties or responsibilities), clause 17.1 (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).

"Except as expressly stated in the Contract...". If the Engineer purports to waive

strict compliance with the letter of the specification, for example under clause
17.1 (Setting-out) or clause 49.2 (Completion of outstanding work and remedying
defects), the Contractor has to decide whether, by gratefully accepting the
offered short-cut, he remains exposed to a claim for breach of contract by the
Employer, due to a lack of authority in the Engineer. The question is, therefore,
whether any express right to waive is granted. Under clause 7.1 (Supplementary
Drawings and Instructions) , the Engineer is given authority to issue instructions
as necessary for the "proper and adequate execution and completion of the
Works". Whilst the use of the word "adequate" may lend some support to an
argument that an Engineer is intended to have a discretion to approve works
which do not comply strictly with the specification, it is doubtful that a Contractor
could demonstrate that any proposed short-cut was "necessary". The Contractor
would, it is submitted, require a variation to be certain that the acceptance of sub-
standard work could not be challenged later. The power to omit work is a clear
example of an express exception: the Engineer is empowered to vary the work to
set a lower standard than that set out in the specification and it is submitted that
the Contractor may generally rely on such an instruction. See under clause 51.1
(Variations), however, for comment on the ability of the Employer to challenge
variations. For further discussion on this subject, see under clause 13.1 (Work to
be in accordance with Contract). See also the clauses dealing with the
rectification of defects and damage such as clause 17.1 (Setting-out), clause
20.3 (Loss or damage due to Employer's risks) and clause 49.2 (Completion of
outstanding work and remedying defects).

Under English law, there is a distinction to be drawn between obligations and

liabilities. There comes a point in the degree of performance by the Contractor
when he has sufficiently fulfilled the requirements of the contract that the
"obligation" is replaced, in the event that 100% compliance does not occur, with a

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secondary "liability" to pay damages for the shortfall. It may therefore be argued
by a Contractor accused of breach of contract in respect of work approved by the
Engineer that, in allowing a short-cut, the Engineer was not relieving the
Contractor of any obligation. It must be recognised that this is a lawyer's point
and one that would not necessarily find favour with arbitrators, even in England.

Under all the standard forms of construction contract, it is difficult to determine at

what point the Engineer or equivalent becomes "functus officio" or redundant.
The answers may well be different for each of the Engineer's roles. As the
Employer's agent, his power to issue instructions ceases at the latest when the
Defects Liability Certificate is issued pursuant to clause 62.1 (Defect's liability
certificate). It is argued in the commentary under clause 13.1 (Work to be in
accordance with the contract) that the Engineer's power to order variations
should come to an end at substantial completion.

As certifier, the Engineer's obligations continue through to the Final Certificate

under clause 60.8 (Final certificate) which may not be issued for three months
after the Defects Liability Certificate.

As adjudicator, giving decisions under clause 67.1 (Engineer's decision), it

seems that the Engineer has a role for as long as disputes may arise under the
contract. This could mean for as long as any applicable law permits disputes to
arise to the full extent of the relevant limitation periods. Thus, for example, a
defect arising in the works 5 years after completion could cause the Employer to
seek to recover damages for breach of contract from the Contractor. The
Contractor could defend himself on the grounds that the defect arose from an
error in design and the dispute should, according to clause 67.1, be referred to
the Engineer for his decision. If the Engineer refuses to become involved, the
mechanism of clause 67 allows the dispute to go forward to arbitration by default.

It is therefore submitted that there is no one moment in time at which the

Engineer becomes functus but three or more. Each function of the Engineer
must be considered individually.

2.2: On many projects, particularly where the Employer is a government

department, it is the Engineer's Representative who is the real decision-maker
and the effective Engineer under the project although he will report to and obtain
signatures from the Engineer named in the contract, who may be a Government
official or employee. The delegation must be in writing. Apart from clause 1.1
(Definitions), the Engineer's Representative is referred to in only two other
clauses: clause 13 (Work to be in accordance with contract) whereby the
Contractor is obliged to take instructions from the Engineer's Representative and
clause 15 (Contractor's superintendance) on the same subject. These
references appear to be superfluous as the Engineer's Representative has no
power without delegated authority under clause 2.3 and power thus delegated is
not dependent upon an express mention in the relevant clause.

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It is implicit that the duty of impartiality under sub-clause 2.6 applies to the
Engineer's Representative and that the powers to open up decisions contained in
clause 67 (Disputes) apply to his decisions. These conclusions, it is submitted,
follow from the nature of delegation: the actions of the Engineer's Representative
are treated as being the actions of the Engineer. See also the right to query the
Engineer's Representative's decisions under sub-clause 2.3.

2.3: Normally, the Engineer retains powers to grant extensions of time, order
acceleration, value variations over a particular figure and issue certificates of
default. He will also retain the power to make decisions normally under clause
67.1 (Engineer's decision). Other items not usually delegated include the notice
to commence, substantial completion, the Defects Liability Certificate, clause 60
(Payment) and clause 65 (Special Risks). A Contractor may be well advised to
require a list of non-delegable powers to be included in Part II if he wishes to
know that the crucial decisions will remain with the Engineer named in the
tender. FIDIC's Guide suggests that any restriction on delegation in the
Engineer's terms of engagement should be disclosed. It is submitted that the
Contractor is not entitled to assume that authority has been delegated as notice
to the Contractor is essential before a delegation takes effect. Contractors are
therefore obliged to satisfy themselves on this point before acting on instructions
from the Engineer's Representative.

If the Engineer disagrees with a decision delegated to the Engineer's

Representative, there is no power under the contract for the Engineer to
countermand the decision unless the decision is questioned by the Contractor
under item (b) of this sub-clause or either the Employer or Contractor requests a
decision under clause 67.1 in which case the matter may be reviewed. The
Engineer may, however, disapprove work etc which his representative did not
disapprove. The draftsman is at pains not to use the term "approve" in clause
2.3(a) and thereby raises the question of whether an approval or expression of
satisfaction by the Employer's Representative would disentitle the Engineer from
instructing the Contractor to rectify work.

In item (b), it is not clear to whom the word "he" refers i.e. whether it is the
Contractor or the Engineer's Representative who has the power to refer a
decision of the Engineer's Representative to the Engineer for reconsideration.
This is unfortunate as it is only this sub-clause and clause 67 (Settlement of
disputes) which allow decisions to be altered, other perhaps than by variations or
with the agreement of the Contractor. The Engineer is obliged to respond but no
time limit is given nor is such confirmation etc within the terms of clause 1.5
(Notices, Consents etc) which prohibit unreasonable delay. As discussed in
clause 2.4 below, this could cause delay to the project for which there is no
obvious category of extension of time under clause 44.1 (Extension of time for
completion). Reference to the Engineer under this sub-clause will not amount to
a request for a decision under clause 67.1 (Engineer's Decision) because a party
requiring such a decision must make express reference to clause 67.1.

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Clause 61.1 (Approval only by Defects Liability Certificate) indicates that any
approval by the Employer's Representative is not in any event effective. Clause
13.1 (Work to be in accordance with contract) requires the Contractor to execute
the works in strict accordance with the contract to the satisfaction of the
Engineer. If clause 13.1 has not been delegated to the Engineer's
Representative, again his expression of satisfaction will not be effective. If it has
been delegated, then the position is unclear. It is submitted that if the work was
demonstrably not in accordance with the contract, then the Engineer's
Representative would have no power to express such satisfaction as it would be
relieving the Contractor of one of his obligations under the contract contrary to
clause 2.1(c) above.

2.4: There is a perhaps inevitable uncertainty about the scope of the power of
assistants to issue instructions. The Contractor has to decide whether
instructions given by an assistant are "necessary to enable them to carry out their
duties", or "necessary ... to secure their acceptance of materials ...". The
meaning of the second circumstance is particularly obscure. Thus, a Contractor
will be well advised if in any doubt to seek the Engineer's confirmation pursuant
to clause 2.3(b). The Engineer is obliged to respond but no time limit is
specified. This could put the Contractor in the awkward position of having to
decide between the risk of delay whilst an instruction is queried against the risk
that the cost of complying with the instruction could be irrecoverable if the
instruction is held to be unauthorised.

An independent inspector nominated under clause 37.5 (Independent inspection)

is to be considered as an assistant under this sub-clause.

2.5: This clause supplements clause 1.5 (Notices, consents etc) by adding
instructions to the list of items which must be in writing. There is scope for
confusion however with regard to oral instructions. The Contractor has an
obligation to comply with such oral instructions but they are not deemed by the
sub-clause to be instructions until confirmed. Whilst it is obviously necessary to
have a regime which prevents unscrupulous Contractors claiming payment for
oral instructions not given, this sub-clause requires the Contractor obeying the
instructions to run the risk that confirmation will not be forthcoming or that his
own confirmation will be contradicted by the Engineer. There is also an anomaly
whereby confirmation given by the Engineer results in the written confirmation
amounting to the instruction whereas an uncontradicted confirmation by the
Contractor results in the original oral instruction being "deemed to be an
instruction of the Engineer". This could be significant, for example, in relation to
the time limits in clause 52.2 (Power of Engineer to fix rates) or clause 53
(Procedure for claims). In the former case, the failure to give notice of a claim
within 14 days of an instruction varying the work could be fatal to the Contractor's
claim. Under this clause, if an oral instruction is given varying the work and the
Contractor writes seeking confirmation of the instruction, but awaits that
confirmation before giving notice of his claim, the Engineer could put the
Contractor into difficulties by failing to contradict the Contractor's confirmation of

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oral instruction with the result that the instruction will date back to the original oral
instruction, possibly putting the Contractor out of time.

For the other provisions dealing with instructions, see clause 7.1 (Supplementary
drawings and instructions), clause 13.1 (Work to be in accordance with the
contract) and clause 51.1 (Variations).

2.6: This clause, which is entirely new to the 4th Edition, makes express what
is otherwise generally accepted as an implied term of the contract, namely that
the Engineer must act impartially when performing his role as independent
certifier. The difficulty confronting the draftsman was defining that role and
distinguishing it from the Engineer's role as the Employer's agent. The table set
out under clause 1.5 will demonstrate that all of the Engineer's functions are not
specifically included in this list. In particular, notices, certificates, determinations
(other than of value) and instructions are not mentioned although they are
undoubtedly covered by (d) "taking action which may affect the rights and
obligations of the Employer or the Contractor". The key word which the
draftsman has used to distinguish between the Engineer's roles is "discretion".
The draftsman appears to have assumed that the Engineer has no discretion
whilst acting as the Employer's agent. This assumption may be incorrect.

"(a) giving his decision, opinion or consent". The term "decision" is reserved
exclusively for the Engineer's role in the disputes procedure under clause 67.1
(Engineer's decision). The Engineer's opinion is used throughout the contract to
decide whether a state of affairs exists, such as whether the Contractor has
defaulted under, for example, clause 39.1 (Removal of improper work, materials
or plant) or whether rates and prices are no longer applicable under clause 52.2
(Power of Engineer to fix rates). The most important consents required from the
Engineer are required under clause 4.1 (Sub-contracting), clause 14.1
(Programme to be submitted) and clause 46.1 (Rate of progress).

"(b) expressing his satisfaction or approval". In relation to the term "satisfaction",

see the commentary under clause 13.1 (Work to be in accordance with Contract).
See clause 61.1 (Approval only by Defects Liability Certificate) in relation to the
term "approval".

"(c) determining value". The Engineer is required to determine value under

clause 52 (Valuation of variations), clause 56.1 (Works to be measured), clause
60 (Payment) and clause 63.2 (Valuation at date of termination). In addition a
number of clauses such as clause 65.3 (Damage to Works by special risks)
require the Engineer to value in accordance with clause 52.

"Any such decision...may be opened up, reviewed or revised as provided in

clause 67." As will be seen from the table under clause 1.5 (Notices, consents
etc) there is a mismatch between this list and the lists given under clause 67.
The terms "open up, review and revise" are to be found in clause 67.3
(Arbitration) but, it is submitted, the Engineer also has power to review his
decisions when asked for a decision under clause 67.1 (Engineer's decision). As

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decisions of assistants under clause 2.4 (Appointment of assistants) are deemed
to have been given by the Engineer's Representative and communications by the
Engineer's Representative are stated in clause 2.3 (Engineer's authority to
delegate) to have the same effect as though given by the Engineer, this sub-
clause applies equally to the exercise of discretion by the Engineer's
Representative and assistants.

The existence in the contract of an obligation that the Engineer be impartial may
give rise to an argument that the Employer is thereby obliged to nominate as
Engineer someone who is capable of such impartiality. Accordingly, the
nomination of an employee of the Employer who was obliged to report proposed
decisions to the Employer and take instructions would not be in accordance with
the contract. The argument may be largely academic given that the Engineer will
invariably be named in the tender documentation and in view of the absence of
any power permitting the Employer to renominate in the event of an Engineer
ceasing to act: see under clause 1.1 (a)(iv). If an Employer did fail to propose a
replacement candidate capable of impartiality, the Contractor might have
grounds for complaint under clause 69.1 (Default of Employer) item (b)
"interfering with or obstructing... the issue of any such certificate". For further
comment on the effect of this clause on the duties of the Employer in relation to
the Engineer, see under sub-clause 2.1 above.

FIDIC's concept of an express obligation to be impartial has been adopted by

ICE 6th at clause 2(8). However, instead of attempting a general definition of the
Engineer's functions undertaken as an independent person, ICE 6th obliges him
to be impartial in respect of all matters which are not listed as matters requiring
the prior approval of the Employer under the clause equivalent to sub-clause
2.1(b) above. There is, however, no equivalent in ICE 6th to clause 69.1 item (b)
permitting the Contractor to terminate in the event of the Employer "interfering
with or obstructing... any such certificate".

On the wording of this sub-clause, it is not difficult to mount an argument that

every function of the Engineer under the contract involves a discretion and
affects the rights and obligations of the parties. Accordingly, every function of the
Engineer could be subject to the impartiality obligation with the result that the
Engineer would not be able to function as agent for the Employer serving only
the Employer's interest. The Employer would therefore be obliged to specify in
the contract that the Engineer is not "required to exercise his discretion" in
certain instances. This might be achieved by listing certain functions required to
be agency functions in Part II. This then becomes similar to the ICE 6th.

For further commentary on this subject, see the section on the role of the
Engineer.

CLAUSE 3 : Assignment

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The Contractor may not assign any part of its contract unless the Employer
agrees. The Contractor may however, give his bankers a charge over monies
due under the contract. The clause does not affect an insurer's right of
subrogation whereby the insurer seeks to recover from another party sums paid
out to the Contractor.

Item (b) is new to this edition, as is the reference to clause 1.5 (Notices, consents
etc). The main thrust of the clause remains, however.

Owing to the general requirement in clause 1.5 that consent shall not be
unreasonably withheld or delayed, it is necessary in this clause to give the
Employer an unfettered right to withhold his consent from an assignment. Any
purported assignment would be invalid under English law and give the purported
assignee no rights without the prior consent of the Employer. The two
exceptions recognise the realities of the Contractor's financing and insurance
arrangements.

For further commentary in relation to assignment by the Contractor, see the

commentary under clause 1.1(a)(ii).

CLAUSE 4 : Sub-Contracting

This clause prohibits the sub-contracting of the whole or any part of the Works
unless the contract expressly permits it or specifies the name of a subcontractor
or the Engineer gives his consent. The Contractor does not require consent for
labour and the purchase of specified materials. Regardless of any consent, the
Contractor will be fully liable for the defaults of the subcontractor as if they were
the defaults of the Contractor himself.

The Employer may require and pay for the assignment to himself of any
guarantee or warranty or other continuing obligation undertaken by a
subcontractor to the Contractor which lasts beyond the Defects Liability Period.

Sub-clause 4.1 is largely taken from the 3rd Edition but items (b) and (c) are new.
Sub-clause 4.2 is derived from clause 59(6) of the 3rd Edition.

4.1: This sub-clause is given considerable importance by the fact that clause
63.1(e) (Default of Contractor) makes contravention a ground for termination by
the Employer. In contrast with the 3rd Edition and ICE 5th, there is no
requirement in clause 63.1 that unauthorised sub-letting should be "to the
detriment of good workmanship or in defiance of Engineer's instructions to the
contrary" before the Employer may terminate. Thus, any technical breach of
clause 4.1 could be disastrous.

The consent of the Engineer is subject to clause 1.5 (Notices, consents etc) and
may not be unreasonably withheld or delayed. Under clause 2.6 (Engineer to act

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impartially), the Engineer must make his decision impartially having regard to all
the circumstances.

"Any such consent shall not relieve the Contractor from any liability ...". This
provision is intended to make it plain that the Engineer's agreement to a
particular subcontractor will be given without any responsibility being taken for
the subcontractor's competence and ability to perform. It is made plain that
subcontractors will be treated as if they were part of the Contractor's organisation
for the purposes of responsibility. No distinction with regard to responsiblity is
made between subcontractors nominated pursuant to clause 59 (Nominated
Subcontractors) and the Contractor's own subcontractors. Unlike some English
standard forms, there is no extension of time available for the defaults of the
nominated subcontractors unless the selection of the nominated subcontractor
was so bad as to amount to "delay, impediment or prevention by the Employer"
within clause 44.1 (Extension of time for completion) item (d). Similarly, if the
nominated subcontractor has any design obligations under clause 59.3 (Design
requirements to be expressly stated), the Contractor is to be given an indemnity
under the nominated sub-contract but remains liable to the Employer. The
position in contract is to be contrasted with the position in tort under English law
whereby a contractor is only liable for the defaults of his independent
subcontractors if the contractor was negligent in their appointment or, possibly,
their supervision: see the decision of the House of Lords in D & F Estates v
Church Commissioners (1988) 3 WLR 368.

Because of the danger imposed by clause 63.1 (Default of Contractor), a

Contractor should be sure of his ground before relying upon one of the
exceptions (a) to (c) for which no consent is needed. These exceptions are new
to the 4th Edition save that "the provision of labour on a piecework basis" was an
exception contained both in the 3rd Edition and ICE 5th. It is submitted that a
subcontractor who provides nothing but labour falls within exception (a).
Arguably, a subcontractor who provides labour and purchases materials which
accord with the specification is also an exception. However, this would seem to
go beyond the intention of the draftsman and it would be extremely dangerous for
a Contractor to proceed on that basis. Equally dangerous would be to proceed
with the purchase of materials without the specific consent of the Engineer
because if, through no fault of the Contractor or any subcontractor, the materials
delivered did not comply with the specification, the exception would no longer
apply and the Contractor would be in default.

Exception (b) could apply equally to the purchase of materials directly from the
manufacturer by the Contractor or to the purchase through a supplier. In the
former case, the element of sub-contracting would be in the manufacture itself.
Presumably, (a) should be read restrictively so that consent would be required for
a subcontractor who supplied materials and provided labour to install such
materials.

As to (c), the naming of such a subcontractor within the contract would entitle the
Contractor to use that subcontractor. It is not apparently necessary for the

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