During the procurement process the Authority will have provided a lot of information to the Contractor which the Contractor will have used to prepare its bid. However it does not follow that the Authority has warranted such information to be true. Under the WIDP Contract (Clause 5.5) it is made clear that the Authority gives no warranty in respect of the Disclosed Data (in simple terms, information relating to the Project).
Further at Clause 5.6 it is agreed that the Authority will have no liability to the Contractor in respect of the contents of the Disclosed Data (unless statements have been made fraudulently by the Authority, its agents or employees before execution of the Contract (see Clause 5.7). Clause 5.6 also states the Authority is not liable to the Contractor if the Authority has failed to provide information relating to the Project.
Given the lack of warranties from the Authority it is clearly the Contractor's responsibility to undertake any due diligence (i.e. independent verification of all relevant information) it considers necessary before entering into the Contract. Under the WIDP Contract (Clause 6) the Contractor is deemed to have52:
• satisfied itself about the assets it will acquire and the risks it will assume under the Contract; and
• gathered together all relevant information needed to perform its obligations, including information relating to the Site(s), Contract Waste, archaeological finds, areas of archaeological, scientific or natural interest, local conditions and facilities, existing structures and anything else agreed on a project specific basis.
Hence it is clear that the Contractor must make its own investigations to check the accuracy and adequacy of the information provided to it by the Authority or any other person. If it later transpires that the Contractor entered into the Contract relying on information that was incorrect or insufficient, it is still bound to comply with its obligations under the Contract, unless there have been fraudulent statements (see Clause 5.7) or there are other parts of the Contract that expressly allow deviation from this position. If the Contract Manager becomes aware that the Contractor is seeking some redress for having relied on any inaccurate information provided by the Authority (s)he should seek advice from the Authority's Legal Department immediately.
____________________________________________________________________________________
52 This is subject to the other parts of the WIDP Contract that relate to fraudulent statements from the Authority, its agents or employees (Clause 5.7) or the discovery of fossils and antiquities (Clause 14).