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It was all a bit last-minute. The first electrical subcontractor had gone. Emcor Drake & Scull (ED&S) was asked by Edinburgh Royal Joint Venture to bid and get on with the electrics at the Royal Infirmary. No thanks, said ED&S. My guess is that this experienced M&E contractor has previously burnt its fingers on a rushed bid. In any case there were 352 tender drawings.

But ED&S reconsidered. Its tender, though, contained an important statement: 鈥淥ur bid has been prepared on the understanding that the tender drawings received are fully co-ordinated and approved for construction.鈥�

Come on, then, all you contractors, lawyers and disputomaniacs, what is ED&S trying to protect itself from? It鈥檚 an ailment called 鈥渇uzzy-edge disease鈥�. Heard of it? It鈥檚 the cause of umpteen disputes based on the allocation of design responsibilities. Folk like ED&S are quite capable of designing M&E works 鈥� given time. But given no time, they can only be the putter-upperers.

The ED&S bid also said: 鈥淭he price quoted is based on the technical specification and drawings only. Any subsequent changes would be processed on receipt of a variation instruction.鈥� Oh, before I forget, the bill for those variation instructions and breach of warranty about the drawings totted up to a shade under 拢5.5m.

鈥淪han鈥檛 pay,鈥� said the joint venture. The judge at trial (Emcor Drake & Scull vs Edinburgh Royal Joint Venture [25/10/05] Scottish Outer House) said: 鈥淭he two sides plainly had radically different views as to the terms of the contract and I must decide between those views.鈥� He was talking about the intention of the parties by those words in the contract. The joint venture had agreed that the bid was prepared on that basis. But what does it mean to say 鈥渇ully co-ordinated鈥� and/or 鈥渁pproved for construction鈥�? This case is all about how to construe the contract.

The fuzzy edge is where the line is drawn when the phrase 鈥渇ully co-ordinated鈥� is used. The architect provides the shell drawings. Then an engineer plots the building services. Then someone plots the relationship of services to services and then to building structures. Then someone identifies precise routes, avoids clashes and shows access points. Then someone gives the drawings to the lads on site and they do the putter-uppering. Where did you draw the line? What is a fully co-ordinated drawing?

ED&S had taken the drawings to be the putter-uppering work. That鈥檚 what it priced on. But the joint venture set out to persuade the judge that, using the rules for interpreting a contract, it didn鈥檛 matter a jot what ED&S thought the words meant. You construe a contract as the parties鈥� intentions by reading the terms in the bargain as a whole and by giving the words therein their natural meaning once placed in the context of a commercial relationship.

The joint venture pointed to other contract clauses, which indicated that ED&S had a duty to carry out co-ordination of services in the services engineers鈥� drawings, had agreed to 鈥渇ine tuning鈥� working details and had to satisfy itself 鈥渁s to the position, dimensions and suitability of any previous works which may affect the ED&S works, also advise the joint venture if any previous work was out of position or unsuitable鈥�.

The judge took the view that when reading the contract as a whole, ED&S was 鈥渆xpected to give detailed consideration to the positioning of electrical services鈥�. ED&S was thereby prevented from making a claim on the ground of incorrect or incomplete information about the works. The 鈥渦nderstanding鈥� that the drawings were 鈥渇ully

co-ordinated鈥� was all very well but not enough to defeat the intentions of the contract as a whole. As to co-ordination, the judge accepted the argument that in M&E work there are two stages of co-ordination: one done indicating the runs in the shell and the other that identifies the actual installation.

Fuzzy-edge disease was first diagnosed by the 黑洞社区 Services Research and Information Association in 1994. But having identified the problem and produced pro-forma tick sheets to give certainty, they are not in wide use. ED&S knew what it meant to say but didn鈥檛 use the right words in the contract. Or did it?