Regarding the contractor’s design and obligations, the third recital in the JCT D&B contract says that the employer has examined the CP’s and considers they meet the ER’s. This implies that the employer accepts the Contractor’s design solution, however, as the contractor remains obliged to meet the ER’s irrespective of this, the ER’s still trump the CP’s. My question is about how this compares to Clause 2.14.2 (discrepancies in documents) which says that where the discrepancy is within the ER’s, the CP’s shall prevail? To me, this reads like the CP’s trump the ER’s so I just wanted the seek some clarity on this if possible?
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Yes, the ERs trump the CPs.
On your particular point, clause 2.14.2 deals with a discrepancy within the ERs. For instance, if the works are for the construction of a hotel and the specification part of the ERs says that brass taps should be installed to the baths, but the drawings in the ERs say that the taps should be gold, then there is a discrepancy. If the CPs say brass, then that discrepancy is resolved by the CPs and the contractor installs brass taps. If the CPs say nothing, then the Contractor proposes an amendment and, if the Employer agrees, then that is treated as a Change.
Compare this where the drawings and specification both say gold taps (i.e. no discrepancy) and the CPs say brass taps. Because the ERs trump the CPs then the Contractor must install gold taps.
The Seventh Recital makes it clear that the Employer has examined the Contractor’s Proposals and that they appear to meet the Employer’s Requirements, subject to the Conditions. The use of the word “appear” is crucial.
Its industry practice to delete the majority of the discrepancy clauses and pass all the risk to the Contractor save for post contract changes in law that affect the design of the Works.