The Contractor was provided a report describing the ground conditions. This was produced by the Client. This document is referenced in the Site Information.
The Contractor is constructing a footpath, and based it’s design on clegg test measurements from the Client provided report. These measurements gave a range across numerous test points. For argument sake, these ranged from 1 to 10 and produced an average of 7. Based on all known information at the time of tender, the Contractor used an average of 4 to produce a design for the footpath.
Whilst on Site, the Contractor discovered the conditions not to be that described and carried out the clegg test again. The Contractor was receiving measurements of 1.
The Contractor raised a Compensation Event, Physical Conditions, but this was rejected stating it was the Contractor’s risk that they decided to use that average.
Is the Client correct ? Does the Contractor take the risk for taking a prudent average ?
The test for that CE is at 60.1(12), and is essentially that you would have been acting unreasonably in allowing for it.
I’m not knowledgeable about Clegg Tests, so you’ll have to answer this yourself. Given the information provided, would allowing in the prices for the Clegg Test value being 1 have been reasonable, or unreasonable? It may be useful to think about what the Client’s view would have been at that time.
Clause 60.2 describes the basis of the judgement referred to in clause 60.1(12) and it clearly references the Site Information therefore the Contractor is assumed to have taken it into account and that should help you determine what would have been reasonable to allow for.
Also, note 60.3 states that if there is ambiguity within the Site Info the Contractor is assumed to have allowed for the conditions more favourable for doing the work.
Re. 60.3, does the ambiguity have to be linked to another document or can that clause be used if actual site conditions are found to be different. So the example i used which was the Site Information said 7 but we found 1, would that meet 60.3 criteria ?