154 7 FIDIC Contract Documents
not give any guidance. Does the wording mean that the Contractor must show
evidence that it was impossible to verify the relevant portions, data and information
or will it be sufficient to show that he was simply unable to verify the portions, data
and information to the extent what was practicable with regard to cost and time. It is
suggested that the use of the terms “cannot be verified” implies the understanding that
the Contractor was not in the position to carry out further investigations and scrutiny
efforts irrespective of what was reasonable or practicable. According to Sub-Clause
4.10 Silver Book the Contractor shall be responsible not only for the interpretation of
data which were made available to him but also to verify them. Other than under the
Yellow Book the Contractor’s responsibility of verification is not limited to what was
practicable (taking account of cost and time). Even though he may not have much
time for scrutiny and verification according to Sub-Clause 4.11 he will be deemed to
have obtained all necessary information as to risks, contingencies and other circum-
stances which may influence or affect the Works. By consequence the escape clause
in Sub-Clause 5.1 lit. (d) will only apply if the Contractor was not in the position to
verify the relevant portions, data or information. This may include the argument that
having regard to the subject matter of the obligation and the principle of good faith
the expected efforts were manifestly disproportionate to the Employer’s interest in
performance (compare Section 275 paragraph 2 German Civil Code). Thus the
circumstances of the case may excuse the Contractor, but the simple excuse that
time was too short will not be a valid excuse as such. Following Mr. Corbett, it has
been found that in practise many Employers, for example in the windmill industry,
attempt to delete Sub-Clause 5.1 lit. (d).
7.5.4 Contractor’s Proposal
The Tender Dossier issued to tenderers do not contain any document called a
“Proposal”. This document has to be prepared by each tenderer in accordance
with the Instructions to Bidders and the Employer’s Requirements. Clearly, the
basic premise of the invitation to tender is to obtain acceptable and competitive
tenders, each of which will include a Contractor’s Proposal and shall detail how the
Tenderer would execute the Works in accordance with the documents which form
the Contract in order to satisfy the Requirements. In this respect, the Contractor’s
Proposal shall comply with the Employer’s Requirements in the sense that the
Works proposed therein shall comply with them.
According to Sub-Clause [Link] Yellow Book the Contractor’s Proposal means
the document entitled proposal, which the Contractor submitted with the Letter of
Tender, as included in the Contract. Such document shall include the Contractor’s
preliminary design, which is a statement of the design fundamentals (supported by
drawings) together with a more or less detailed specification of the Works (see
Trickey and Hackett 2001, note 8.1.7 as to JCT 1998 WCD).
Sub-Clause [Link] Yellow Book does not appear in the Silver Book. However, it
is intended that the Contractor submits a design proposal together with his tender,
which will become included in the Contract according to Sub-Clause 1.5 lit. e.
