9. “THE WRITTEN ACCEPTANCE” OF TENDER is for the first time made a contract document (p. 20), although that is overlooked in the Agreement (p. 21).

If an acceptance is qualified by refusing terms in the contractor’s tender or adding new terms, there is no contract unless and until the qualification is accepted by the contractor expressly or by starting work without objection. A qualified acceptance may be dangerous since it determines the contractor’s tender, which cannot subsequently be accepted (even without the qualification) unless it is renewed. g

10. No SCHEDULE OF RATES AND PRICES. The references to a schedule of rates and prices in the previous edition have been omitted because no function was assigned to the schedule.

11. “TENDER TOTAL” as defined here is referred to in cls. 10 (amount of bond) and 60 (4) (limit of retention).

This definition assumes that all errors in arithmetic in the tender will have been corrected prior to acceptance. Where errors remain, it is not absolutely clear that it is the correct total and not the stated total that applies. This ambiguity is unlikely to be of great practical importance.

12. “CONTRACT PRICE”. The payment due to the contractor depends on the classification of the contract, generally as either (a) pure lump sum; (b) quantities; (c) measure and value; or (d) cost plus.

(a) Pure lump sum. An agreement to complete a whole work—to build a house or a bridge or a dock—for a lump sum. In law this is an undertaking to get a certain result for a fixed sum of money. The contractor is entitled to that sum only, however difficult it may unexpectedly turn out to be to get the result:

Pure lump sum contract to lay the San Paulo Railway from terminus A to terminus B. As a result of errors in the engineer’s plan almost twice the quantities of excavation originally estimated were needed to complete the line.

Held: The contractor was entitled to no extra payment beyond the lump sum price in his tender. h

And no work indispensably necessary to get the result is an extra:

In a lump sum contract to build a house, flooring was omitted from the specifications.

Held: The contractor must put it in without extra payment, as it was clearly indispensably necessary to complete the house. i

Therefore in a pure lump sum contract the contract price will be altered only where the plans, etc., are varied by the employer because he decides that a change is preferable, although it is not absolutely necessary; not where the change is necessary to complete the project:

Pure lump sum contract to build a bridge. If it is found that the piling specified cannot support the superstructure, the contractor must change it without extra payment so far as necessary to complete the works. If the piles will support the superstructure but the engineer decides that a change is preferable to improve on the original scheme, he must give a variation order and the contractor will be entitled to extra payment for any additional work. j

And an express promise to pay extra for work in fact included in the contract price is not normally binding (pp. 3–4 and 179, N.2).

A contractor who agrees to a pure lump sum contract for work that is uncertain and unforeseeable in extent will be considered by the courts simply to have taken a voluntary gamble and will be bound by the contract. judges in the early cases which settled the law was clearly influenced by the feeling that an employer obtains a tender and fixes a contract price for work in order to know what he is in for, and that any relaxation of these rules would destroy the whole object of getting a tender. This, of course, ignores the difference in extent and difficulties between large-scale engineering works and the ordinary relatively simple building work. Nevertheless, following from this attitude the courts hold that in inviting a tender there is no implied guarantee by the employer that the plans, bill of quantities or specifications supplied to tenderers are accurate, or that the work can be carried out in accordance with them:

By the plans to build Blackfriars Bridge the foundations were to be put in with caissons. The contractors found this impossible and eventually had to abandon the attempt and complete the bridge in accordance with altered plans.

Held: While they were entitled to the contract payments for the original work actually completed and, under the particular form of contract, to extra for the work in the new plans, they were not entitled to damages for the added expense and delay in trying to do the original work. k

The courts hold that in putting forward plans, specifications and a bill of quantities with the invitation to tender, the employer is merely putting forward the estimate of an engineer as to how the required result may be achieved—he is not guaranteeing that the engineer is right. The courts know that it is the custom for the contractor to rely on these documents, but insist that if he does that to save himself trouble in tendering, it is “a usage of blind confidence”. l

But since that last decision in 1876 much development has taken place around this area of law and the employer is liable for misleading contract documents in the several cases discussed on pp. 58–63.