Case law on Adverse Physical Conditions is now settled
David Kinlan
I help ensure your civil, construction & marine infrastructure project's are delivered on time, within budget & with minimal risk.
I came across the article titled “Unforeseeable ground conditions and the FIDIC Silver Book” by Jeremy Glover, a Partner of Fenwick Elliott. It refers to a recent court case of PBS Energo AS v Bester Generacion UK Ltd & Anr [2020] EWHC 223 (TCC) (07 February 2020) in the UK concerning asbestos found at the Site of a biomass energy plant in North Wales that was never built. The contract was an amended version of the FIDIC Silver Book 1999 for EPC or turnkey projects. Jeremy’s article can be read here.
The PBS judgement relied heavily on previous court decisions, in particular the decision of Mr Justice Coulson in Van Oord UK Ltd v Allseas UK Ltd and the Court of Appeal decision in Obrascon Huarte Laine SA v Her Majesty’s Attorney General for Gibraltar where Mr Justice Akenhead had refused a claim based on allegedly unforeseen ground conditions.
Mr Justice Akenhead said :?
“I am wholly satisfied that an experienced contractor at tender stage would not simply limit itself to an analysis of the geotechnical information contained in the pre-contract site investigation report and sampling exercise. In so doing not only do I accept the approach adumbrated by Mr Hall [the defendant’s geotechnical expert] in evidence but also I adopt what seems to me to be simple common sense by any contractor in this field.”
The Judge in the PBS noted that the trial pit results were important, even though they represented a detailed investigation of ground conditions at various places across the site. This led to a clear analogy to Obrascon:
“this was not a case of asbestos being a possibility – it was clear that asbestos contamination was a reality, and potentially at some depth in some places, though the extent of the problem was not clearly delineated.”
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When it comes to tender documentation, the experienced contractor cannot simply rely on the information provided by others. In the Obrascon case, the English Court of Appeal, noted that when assessing tender data:
“an experienced contractor would make its own assessment of all available data … …. the FIDIC conditions require the contractor at tender stage to make its own independent assessment of the available information.
The contractor must draw upon its own expertise and its experience of previous civil engineering projects. The contractor must make a reasonable assessment of the physical conditions which it may encounter. The contractor cannot simply accept someone else’s interpretation of the data and say that is all that was foreseeable.”
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2 年Publication ... Comments to UPC, Soil Risk, Metapher : SC04.20 + SC04.12 ... https://www.dhirubhai.net/posts/helmut-f-giesa_who-is-responsible-for-soil-risk-upc-sc0412-ugcPost-6963584265661865984-eVpS?utm_source=linkedin_share&utm_medium=member_desktop_web
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2 年Who is responsible for "SOIL RISK / UPC SC04.12 MDB2010" in reference to the attached Article "case law" (click on picture) A _ The Article does not respond to an "experienced owner/Client/Employer"? An experienced Employer has a responsibility to take care of the "true" Site data provided to the Contractor. Hence if the data are wrong, the interpretation might false or even true. B _ The Soil Risk rests in some National Laws with the Employer / Owner / Client. The German Civil Law blames the Employer if he does not provide appropriate SOIL data due to adequate soil explorations, which cover the entire SITE. And if the Client is an experienced entity, the requirements are even tighter to provide complete and comprehensive soil data. Missing data are in the sphere of the Employer's Liability. C _ Metapher to SC04.20 [Employer's Equipment and Free-Issued Materials] to identify hidden similarities to SC04.12 UPC to "share" Risks, not knowing the nature and extent to assess the costs! The Employer provides the SITE with the "ground" . He issues the Material for Free. Hence he is responsible for faulty material pertaining to SC04.20.
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3 年The Courts decisions were simply based on the reasonable test of a prudent Contractor which to an extent aligns with the spirit of the Contract
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3 年What must be observed in respect of such cases, is the difference between the project delivery system adopted by the Contracting Authority/Employer to solicit tenderers. If the chosen Project Delivery System is EPC and the contractors/tenderers are allowed adequate time to tender, access to the project site and the right to perform destructive testing of the subsoil, then an experienced contractor is expected not to rely solely on the Employer’s supplied data but to make its own assessment of the subsoil and rely on its own assessment. However, if the Project Delivery Systems are the Design-Bid-Build or the Design-Build types and the contractors/tenderers are not given adequate time to tender, access to site and the right to perform at tender their own investigations, then an experienced contractor cannot be expected to not rely solely on the Emplyer’s data provided at tender, because it would obviously be impeded to perform its own investigations and rely on its own assessment of the subsoil.