ABSTRACT
In an effort to start the job and, having started it, to maintain reasonable progress, the contractor sometimes assumes more than its fair share of responsibility. An example of this may be observed in the contractor’s attitude to setting out when faced with wholly or partially inadequate drawings. Very often, it does its best on the information available when it should be seeking to protect its own position. Setting out is covered by SBC clause 2.10, IC/ICD clause 2.9. MW/MWD
makes no mention of setting out, but it is thought that a term is to be implied on similar lines to the express terms in the other contracts. SBC and ICD clauses are virtually identical. The architect’s obligation to
determine levels and provide setting-out information is, in each contract, made subject to the contractor’s obligation to provide the architect with relevant levels and setting-out information for the CDP work. The provision in IC is similar, but obviously excludes any reference to CDP work. It is good to see that the somewhat misleading reference to setting-out at ground level which was contained in JCT 98 has been removed from SBC. DB has no similar term dealing with setting out. This is because it is the
contractor’s obligation, as designer, to fix all the relevant setting out dimensions and levels. It must be implied that the contractor has the same setting out duty as if one of the other traditional contracts were used. The employer’s obligation is merely to define the boundaries of the site (clause 2.9). It is the contractor’s responsibility, under any of the six contracts, to set out
the Works accurately and if it makes any mistake, it must amend it at its own cost. For example, a contractor may set out a building in such a way that the dimensions of the building work properly in relation to all the other building dimensions, but the building as a whole is in the wrong position on the site. This kind of error may only become obvious when site works are in pro-
gress. Clearly the contractor may have carried out many thousands of pounds worth of work by that time. The contractor’s obligation seems to be to tear down what it has built and start again, setting it out correctly this time. Certainly, where someone is in breach of contract, the other party is entitled
put it in the same position had been correctly carried out [1]. In the case of incorrect setting out, that would mean the cost of demolition and re-erection. However, this very strict and draconian approach would be modified in practice by the courts or an arbitrator and if the cost of rectification was out of all proportion to the benefit to be gained, rectification would not be supported and a nominal sum might be awarded instead [2]. All the circumstances would have to be taken into account including whether the injured party intended to have the matter put right or simply pocket the money. If the building encroaches onto neighbouring land, it amounts to trespass
and the contractor would be liable for damages if sued directly by the neighbour or as third party if the neighbour sued the employer. Fortunately, most errors are detected quite early, often while the building
is still in the foundation stage and the damage can be limited. What of the situation where the contractor sets out wrongly so that the employer has substantially more building than expected? There was a case some years ago in which the building, a school, was half a metre longer than shown on the drawings. The error was not discovered until the architect designed a floor tiling pattern and found that it was too short. On the face of things, the employer had gained rather than lost by the contractor’s error. In such an instance it would probably be unreasonable to expect the contractor to correct the error, although that is its strict obligation. The contractor would certainly have no claim for reimbursement for additional work and materials used. Moreover, the employer would probably be able to claim that it would be involved in additional maintenance expense for the life of the building. It is probably to overcome such problems that SBC and IC/ICD provide
that the architect, with the employer’s consent, can instruct the contractor not to amend errors in setting out and make an appropriate deduction from the contract sum. There is no guidance in the contract regarding what might constitute an appropriate deduction. The situation is similar to that created when the employer opts not to have defects corrected at the end of the rectification period (see section 7.1) and an appropriate deduction might be the cost to the contractor of rectification of the defective setting out [3]. It is more likely that a much smaller sum would be indicated. In the case mentioned above, the cost would be substantial and it is doubtful if a court would enforce the point. More likely, the extra cost of maintenance and decoration would form a basis for compensation. Each case has to be decided on its own facts and if the contractor’s setting-out error really was impossible to live with, demolition and rebuilding could be ordered. In all cases where errors are accepted by the architect and employer, the
amount to be deducted is likely to be a source of argument. It should be noted, however, that once the architect has issued an instruction accepting errors in setting out on the basis that a deduction is to be made later, the expensive
the exact method of should be able to keep such deductions within reasonable limits. If the contractor is unhappy about the deduction and the architect refuses to adjust it, the remedy is to refer the matter to the appropriate dispute resolution procedures. Such problems should be capable of quick resolution by adjudication. A contractor who makes an error in setting out is often understandably
annoyed at the prospect of amending mistakes. It may unjustly accuse the architect or clerk of works of being aware of the error long before the contractor noticed it. However, under the general law the architect has no duty to the contractor to detect errors [4].
