7. “AND SHALL…WITH THE NOTICE…GIVE DETAILS…OF THE MEASURES HE is TAKING OR PROPOSING TO TAKE”. Note that it is the contractor who must decide what measures are necessary to deal with the difficulties—N. 8. The contractor is not bound to give details of any measures he has already completed, although apparently he may recover extra payment for them—N. 6 and 17.
The results under cl. 52 (4) of failure to give a notice do not appear to apply to absence of this information “with the notice”. Under the general law it seems that failure to give the information does not automatically invalidate a claim, because this clause does not say that it does, but see N. 8. Failure to give the information also may make it difficult for the contractor to persuade the engineer or an arbitrator of the merits of his claim.
8. “FOLLOWING RECEIPT OF A NOTICE…THE ENGINEER MAY IF HE THINKS FIT”. Since he has a general duty “to complete the Works”, by cl. 3 of the Form of Agreement and cl. 8 (1) of these Conditions, for example, the contractor is bound in the first instance to determine what measures are necessary to achieve completion despite unforeseen conditions or obstructions, and to give details under sub-cl. (1), after which the engineer may take, or even be bound to take, a measure of control under this sub-cl.(2).
The ideal procedure under this clause is that as soon as he encounters the difficulties the contractor notifies the engineer (N. 6), giving details of the measures he proposes to take to deal with them (N. 7). The contractor will point out if a change of design is necessary to cope with the difficulties at a reasonable cost and within a reasonable time and will draw the engineer’s attention to the consequential necessity or desirability of a variation order under sub-cl. (2), and will also draw the engineer’s attention to any other action required under that sub-clause. The contractor will also seek the approval of the engineer under para. (b) before proceeding, to minimise the risk of the engineer or arbitrator holding that cost incurred was unreasonable. The functions of the engineer are dealt with more specifically in the following six notes.
Unfortunately the symmetry of this procedure may be upset because the notice by the contractor may not be given until the unforeseen conditions or obstructions have been dealt with by him for a time (N.6). The engineer need not wait for such notice to take any of the steps mentioned in paras. (b)–(d) of this sub-clause if he knows what is happening:
he is at all times during the progress of the works entitled to give an instruction or suspension or variation order and he may intimate that measures do or do not have his approval under cl. 13 (2). If he does not know what is happening the engineer will be at a disadvantage. For example, he may lose the opportunity to change design to reduce the extra cost due to the conditions or obstructions. That is one reason why an arbitrator should enforce cls. 12 (1) and 52 (4) (d) about notices and particulars, and if the contractor does breach those lax requirements resulting in such a lost opportunity, the employer may counter-claim for his losses against the contractor’s claim for extra cost under this clause.
The words “if he thinks fit” are peculiar to this clause and cl. 44 (2), but in this context do not appear to be different in effect to the many references in the Conditions to the engineer deciding according to his own opinion. The engineer hardly could be entitled to refuse approval for satisfactory and proper measures proposed by the contractor, and as to variations and suspension orders see specifically p. 169, N.3. and p. 131, N.2.
