Bias
0
The Sub-Contractor is deemed fully to have satisfied itself as to all matters of access and site conditions and the Sub-Contractor shall have no claim against the Contractor in relation to any such matters.
The clause is intended to place the risk of access arrangements and site conditions on the Sub-Contractor. It operates in two principal ways:
On its face, the clause is drafted broadly. It seeks to allocate to the Sub-Contractor the risk that access arrangements or site conditions may prove more difficult, restrictive or costly than anticipated. The Contractor is therefore likely to contend that the Sub-Contractor accepted that risk when pricing and entering into the subcontract.
The practical difficulty is that a subcontractor will often tender on the basis of limited information and within a restricted period. It may have had little opportunity to inspect the site, observe actual working conditions, assess access and logistics, investigate concealed conditions, or understand the effect of the Contractor’s proposed sequence and the activities of other trades.
Disputes are therefore likely to arise where the conditions encountered differ materially from those reasonably assumed at tender stage, or where significant constraints become apparent only after the Sub-Contractor has commenced work.
These may include:
In those circumstances, the Sub-Contractor may argue that the matter was not disclosed, was not reasonably discoverable, or arose from events occurring after the subcontract was entered into. It may therefore seek additional time or payment.
The Contractor’s response is likely to be that the Sub-Contractor was contractually deemed to have satisfied itself as to the relevant matters and expressly agreed that no claim would arise from them.
The resulting dispute will commonly turn on the proper construction and scope of the clause. In particular, questions may arise as to whether it extends to concealed or undisclosed conditions, post-contract changes, inaccurate information supplied by the Contractor, or constraints caused by the Contractor’s own acts or omissions. Although the wording is wide, it should not automatically be assumed to exclude every possible claim connected with access or site conditions. Its effect will depend on the subcontract as a whole and the factual cause of the additional cost or delay.
The clause may leave the Sub-Contractor unable to recover substantial additional costs arising from restricted access, congestion, unforeseen site constraints, loss of productivity, re-sequencing, delay and prolongation. This risk is particularly significant where the Sub-Contractor had only a limited opportunity before tender to inspect the site, assess the proposed working arrangements or investigate concealed conditions.
The resulting financial exposure may include:
For example, where deliveries are subject to an unexpectedly restrictive security or booking procedure and unloading takes materially longer than anticipated, the Sub-Contractor may incur substantial additional labour, supervision and plant costs. The Contractor may nevertheless rely on the deeming provision and claims exclusion to argue that those costs are irrecoverable.
Similarly, where unforeseen site constraints impede progress, the Sub-Contractor may be required to bear both its own prolongation costs and any contractual liability arising from delay. The commercial risk is therefore twofold: the Sub-Contractor may lose its entitlement to additional payment while remaining exposed to delay damages, backcharges or other downstream liabilities.
The clause is especially onerous because many of the affected costs will not be apparent at tender stage. They may emerge only once the works are under way and the actual access arrangements, logistics, sequencing requirements and site constraints become clear.
The most helpful authority is Obrascon Huarte Lain SA v Her Majesty’s Attorney General for Gibraltar [2014] EWHC 1028 (TCC).
Under the relevant FIDIC provisions, the contractor was responsible for interpreting the pre-tender site data and was deemed, so far as practicable, to have obtained and considered the information necessary to assess the risks and circumstances affecting the works. Applying the objective standard of an experienced contractor, the court rejected the contractor’s case that the contaminated soil and groundwater encountered were unforeseeable. The available information, considered together with the site’s history, should reasonably have alerted an experienced contractor to those risks. See [13]–[14], [213]–[227] and [229]–[235].
The case supports the proposition that, where the contract places responsibility on the contractor to interpret available information and assess site risks, the court may hold the contractor to the standard of what an experienced contractor ought reasonably to have appreciated at tender stage. It does not, however, establish that every access or site-condition claim will necessarily be excluded. The effect of the clause will still depend on its wording, the subcontract as a whole, the information made available before tender, and whether the relevant constraint existed at that time or arose later through the Contractor’s acts, omissions or changes to the planned working arrangements.
Not applicable.
Not applicable.
A helpful authority is Obrascon Huarte Lain SA v Her Majesty’s Attorney General for Gibraltar [2014] EWHC 1028 (TCC).
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1. Bias (B-Score)
How is risk structurally allocated?
Higher numbers indicate increasing allocation of risk to one party.
2. Exposure (E-Score)
What happens if the clause operates?
Higher numbers indicate greater real-world cost, delay, or dispute risk.
3. Enforceability (Enf.)
Is the clause likely to be upheld and applied as written?
Higher numbers indicate greater likelihood of legal effect.