If the conditions of contract makes it clear that the contractor's tender is deemed to have been based upon his own inspection of the site AND any information provided by the employer, any additional costs resulting from unforeseen physical conditions will be recoverable.
In the absence of specific wording in the conditions, the employer may wish to introduce a clause excluding liability, should the site survey prove inaccurate. Whilst it is feasible to exclude liability if for any reason, including negligence, the information proves inaccurate, such an exclusion would have to be reasonable. However, the few cases which deal with this matter tend to lead to the conclusion that exclusion clauses of this nature are unlikely to find favour with the courts.
Employers, however, may wish to include a non-reliance clause in the contract, which states that the contractor has not relied upon the information provided by the employer in putting together the tender. This type of clause, however, may fail if the employer in fact considered that the contractor had relied upon the information provided.
In the absence of specific wording in the conditions, the employer may wish to introduce a clause excluding liability, should the site survey prove inaccurate. Whilst it is feasible to exclude liability if for any reason, including negligence, the information proves inaccurate, such an exclusion would have to be reasonable. However, the few cases which deal with this matter tend to lead to the conclusion that exclusion clauses of this nature are unlikely to find favour with the courts.
Employers, however, may wish to include a non-reliance clause in the contract, which states that the contractor has not relied upon the information provided by the employer in putting together the tender. This type of clause, however, may fail if the employer in fact considered that the contractor had relied upon the information provided.
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