Section 8.

- Unforeseen Physical Conditions, UKBC-KEATING 465267346 (2022)

Section 8. - Unforeseen Physical Conditions

Keating on Construction Contracts 11th Ed.

Mainwork

Chapter 24 - The FIDIC Standard Forms

Section 8. - Unforeseen Physical Conditions

24-054 The FIDIC Red Book applies a test of foreseeability to the question of whether the Contractor should take the risk of the time
and cost consequences for the works of “… natural physical conditions and man-made and other physical obstructions and
pollutants …” (see Sub-Cl.4.12 and Sub-Cl.1.1.85). 33 Sub-Clause 4.12 must be read together with Sub-Cll.4.10, 4.11 and 2.5 34
The Employer must make available Site data under Sub-Cl.4.10 but the interpretation of that Site data will be the responsibility
of the Contractor.

24-055 As might be expected, the equivalent of these provisions in the Silver Book places far great responsibility on the Contractor.
Site data is to be provided by the Employer but the Contractor is “… responsible for interpreting all data referred to under Sub-
Clause 2.5 [Site Data and Items of Reference]”.

24-056 As part of Sub-Cl.4.11, the Contract Price is expressed to cover all the Contractor’s obligations under the Contract and all
things necessary for the proper execution of the Works in accordance with the Contract. Sub-Clause 4.12 of the Silver Book
proceeds by reference to the broad concept of “… unforeseen difficulties …”. Climatic conditions at the site and their effects
are expressly excluded from the list of relevant physical conditions for purposes of Sub-Cl.4.12. However, the Contractor can
claim an extension of time, but not any money, if the Contractor encounters exceptionally adverse climatic conditions (see Sub-
Cl.8.5 (Extensions of Time)).

Footnotes

33 However, note the changes to the definition of “unforeseeable” in the different MDB versions of the Red Book.
34 The 1999 sub-clause contained obligations imposed on the Employer. These have been moved to Sub-Cl.2.5 in the 2nd
editions and Sub-Cl.4.10 has been renamed the “Use of Site Data” to reflect this.

End of Document © 2022 Sweet & Maxwell

© 2022 Thomson Reuters. 1