1. COPIES OF SOME CONTRACT DOCUMENTS TO BE FURNISHED FREE OF CHARGE “UPON ACCEPTANCE OF THE TENDER”. A useful addition to ensure that the contractor has these documents at an early stage. These words hardly bind the engineer to supply the documents on the very day on which the tender is accepted, but in the case of substantial delay, the contractor could have a claim for any adverse effects on his planning (p. 364).

2. DRAWINGS. Definition cl. 1 (1) (g), p. 25.

3. COPIES NOT FURNISHED FREE OF CHARGE. The contractor is not entitled to free copies of the pricing of the bill, the tender, the written acceptance by the employer or of any contract agreement. Copies of the first two should be retained when tendering, the contractor will have the original of the acceptance, and the agreement should be executed in duplicate. There is no requirement in cl. 7 (1) that the contractor is supplied with more than the original of “modified or further drawings and instructions”.

4. COPYRIGHT. See p. 402, N. 35. The statement that copyright shall “remain in the Engineer” is not completely accurate; copyright in the contract documents will belong to the employer where the engineer is a fulltime employee of his, such as an engineer of a local authority.

For ownership of documents see p. 402.

5. “THE CONTRACTOR MAY…MAKE…ANY FURTHER COPIES REQUIRED BY HIM”. Clearly, this permission is limited to copies required for the works, since the engineer owns the copyright—see the last note.

6. RETURN OF DOCUMENTS BY THE CONTRACTOR. The contractor is not required to return the bill of quantities.

Only “Drawings” and “Specifications” each with a capital letter have to be “returned” under this sub-clause, i.e. those furnished or approved in writing by the engineer within the definition in cl. 1 (1) (f) and (g), and not other drawings, etc., made by the contractor, e.g. for his own temporary works.

The documents are to be returned “At the completion of the Contract”. That stage appears to be reached only with the issue of the final certificate under cl. 60(3) and not earlier with the maintenance certificate, particularly as the contractor may need the documents for preparing his final account.

7. “THE ENGINEER…SHALL SUPPLY…SUCH MODIFIED OR FURTHER DRAWINGS” ETC. See N. 11.

8. “NECESSARY FOR THE PURPOSE OF THE PROPER AND ADEQUATE CONSTRUCTION COMPLETION AND MAINTENANCE OF THE WORKS”—“REQUIRE FOR THE EXECUTION OF THE WORKS OR OTHERWISE UNDER THE CONTRACT”. No reason for this variety of wording is apparent.

9. “THE CONTRACTOR SHALL GIVE ADEQUATE NOTICE IN WRITING” of drawings, etc., required. See N. 11.

10. CLAIMS FOR “FAILURE OR INABILITY OF THE ENGINEER TO ISSUE AT A TIME REASONABLE IN ALL THE CIRCUMSTANCES DRAWINGS OR INSTRUCTIONS”. In view of the importance of disruption claims by contractors, this phrase is discussed separately in ch. 12 on disruption.

11. “DRAWINGS OR INSTRUCTIONS REQUESTED BY THE CONTRACTOR”. This clause can hardly be said to be graced with a rational scheme. Sub-cl. (1) places the duty on the engineer to issue “modified or further drawings” as he considers necessary; nevertheless, the contractor is required by sub-cl. (2) to give “adequate notice in writing” of any “further drawing or specification” that he may require for the execution of the works. and by sub-cl. (3) is entitled to compensation only for delay in the issue of “drawings or instructions requested” and “considered necessary by the Engineer in accordance with sub-clause (1)”.

In view of the ambiguity of the requirement that drawings and instructions must be “requested” to entitle the contractor to claim for delay (not, as could easily have been said if intended, “requested by notice in accordance with sub-clause (2)”), the initial duty placed on the engineer to supply drawings, etc., and the incidental mystery of the change from “drawings and instructions” in sub-cl. (1) to “drawing or specification” in sub-cl. (2) and back again to “drawings or instructions” in sub-cl. (3), it does not seem that “requested” means requested by the contractor by “adequate notice in writing” as specified in sub-cl. (2). Nor does it seem that the contractor is limited to claiming for a period of delay after a request has been made (“at a time” not “within a time”).

Nevertheless, lateness of or lack of clarity or urgency in a request may be relevant to deciding what was a reasonable time for the engineer to provide the drawings or instructions (p. 365). hh

There remains also the very practical point that the contractor has a remedy under this clause for late drawings or instructions only if they have been “requested” by him at some time before receipt. This clause appears to be intended as a comprehensive provision dealing with the contractor’s remedy for delayed instructions or drawings (unlike the equivalent provision of the J.C.T. Standard Forms of building contract, in which the contractor’s common law rights are specifically preserved), so that there is no room for implication of any other term dealing with compensation for delay with drawings or instructions which have not been requested (p. 42). However, in certain circumstances the contractor’s rights under other clauses may come to his rescue. ii 

The problems of delay and disruption claims are discussed at large in ch. 12, but the relationship of the various clauses in these Conditions can be summarised by saying that in so far as performing the work in instructions or drawings would have caused the delay whenever they were issued, then the contractor may have a remedy under cls. 13 or 51 but not under this clause (N. 15); in so far as the contractor suffers delay before instructions or drawings are issued in waiting for them, his only remedy for the cost of that delay is under this clause; if because of the time at which the instructions are issued the contractor has to delay the works after their issue (e.g. in order to pre-plan) he may have the useful alternative to a claim under this clause of claiming under cl. 13 or cl. 51, for instance if the engineer produces some delaying detail which the contractor did not expect and therefore did not request in advance as required by this clause.

In the interests of progress of the works as well as his contractual position if matters do go wrong, it is advisable for the contractor to have a regular office procedure by which in sending his programme he also notifies the dates by which he requires the full drawings and instructions for specified parts of the works. A programme under cl. 14 merely showing a date on which particular work is to be carried out is hardly by itself a sufficient implied request for the drawings and instructions necessary to execute that work so as to satisfy the requirements of this clause.

The contractor should also have a set procedure for giving further written notice in good time of all information he needs, allowing a reasonable period for the engineer to prepare and issue the information and for the contractor himself to do any necessary pre-planning, and recording in what cases and why delay in furnishing the information will disrupt his work. The importance of such records for both the engineer and the contractor is discussed again under the heading of “Claimsmanship” in ch. 17.

Only the engineer or his delegate specifically given all the engineer’s functions or his functions under this clause appear to have power to receive the necessary request, not the engineer’s representative or his assistants (cl. 2 (1)–(3)).