2022-05-28（251）Engineering law a

SETTING-OUT

17. The Contractor shall be responsible for the true and proper setting-out of the Works and for the correctness of the position levels dimensions and alignment of all the parts of the Works and for the provision of all necessary instruments appliances and labour in connection therewith. If at any time during the progress of the Works1 any error shall appear or arise in the position levels dimensions or alignment of any part of the Works the Contractor on being required so to do by the Engineer shall at his own cost rectify such error to the satisfaction of the Engineer unless such error is based on incorrect data supplied in writing by the Engineer or the Engineer’s Representative2 in which case the cost3 of rectifying the same shall be borne by the Employer. The checking of any setting-out or of any line or level by the Engineer or the Engineer’s Representative shall not in any way relieve the Contractor of his responsibility for the correctness thereof4 and the Contractor shall carefully protect and preserve all benchmarks sight rails pegs and other things used in setting out the Works.

1. ERROR IN SETTING-OUT APPEARING “DURING THE PROGRESS OF THE WORKS”. Some of the problems in interpreting the Contract forms may be illustrated by reference to the contractor’s liability if an error in setting-out is only found during the maintenance period:

(a) Is the contractor liable to make good the error under this clause, although it refers to the error appearing or arising “during the progress of the Works”? See p. 65, N. 2.

(b) If he is not, does this work fall within cl. 49 (2), or has the employer a remedy at common law in damages? See p. 164, N. 9.

(c) May the engineer vary the works in the maintenance period, by altering the position of the works although they are situated in accordance with the drawings? See p.175, N. 9.

2. “ERROR BASED ON INCORRECT DATA SUPPLIED IN WRITING BY THE ENGINEER OR THE ENGINEER’S REPRESENTATIVE”. On the wording of this clause the employer is liable for the cost of an error based on such data even if the contractor should have noticed that the data were incorrect, but, it is suggested, not if he did notice it since it is the contractor’s action rather than the original mistake in the data that is the direct cause of the erroneous setting out. And even in the former case the contractor may have liability outside of the contract—p. 396.