A Contractor design and build contract… a culvert has been discovered below ground.
Contractor claiming this is a service and there for should be a CE.
Bearing in mind physical conditions & ground condition are excluded in the contract hence why they claim this a live service.
I feel this is not a CE, am I right?
I am assuming from what you have said that clauses 60.1 (12) and 60.2 (and possibly 60.3) have been deleted from the conditions of contract. This being the case then any matter which would normally be a ‘physical condition’ would be a Contractor risk.
I can see where the Contractor is coming from by describing the culvert as a ‘service’, although ‘physical conditions’ is not limited to ‘ground conditions’ or more specifically geological features and embraces anything of a physical nature which is within the boundaries of the Site.
The other problem is what difference does being a ‘live service’ actually make, unless this matter specifically relates to a Client’s liability.