NEC Option B query:
At tender stage, the Works Information stated that Tender Works Information should not be used to construct the works. Therefore, the Contractor would assume that Works Information would be revised to allow construction of the works. As a consequence of this, the tender programme was submitted with a milestone (which has the same date as the Starting Date) that read “Receipt of all Works Information marked ‘For Construction”. From the Contractor’s perspective, this was a means of ensuring all Works Information marked for construction would be in the Contractor’s hands at the Starting Date of the Contract.
However, at the Starting Date and signing of the Contract no revised Works Information had been received. Several days later, the Tender Works Information were then re-issued and marked “Contract Issue”. A month later, parts of the Works Information were revised further and issued “For Construction”.
Post award, the first programme for acceptance was revised from tender but continued to include the milestone for “Receipt of Works Information marked for construction” and this was accepted by the PM, albeit after the issue of the Contract issue Works Information but before the issue of the Works Information marked “for Construction”.
Q1. Is the Contractor to assume that they are signed up to the Contract based on the Tender Works Information (given the absence of Contract issue Works Information at the time of signing and the Starting Date)?
Q2. Is the Contractor obligated to commence their works based on the issue of Contract Works Information or as phrased by the PM “This is the information that the Contractor has been contracted to build”? This is despite the milestone shown in the tender programme and on the acceptance of the first baseline “CL31” programme requesting WI to be issued “For Construction”.
Q3. Does the Contractor have a right under the Contract to stipulate that they require “Construction Issue” Works Information in order to commence the works, given that they stipulated this requirement in their programme from tender stage and on the accepted baseline programme?
Q4. Most importantly, does the Contractor require an instruction to commence works based on the Contract Issue Works Information, given that it was issued post-signing and post-Starting Date? This is in reference to Q1, which assumes that the Contractor is signed up to the Contract based on the tender Works Information. On the flip side, the PM states that because the Contractor knows and is not to build to the Tender WI, the PM has no need to instruct the Contract issue WI because this is the first issue of the Contracted documents and only subsequent changes need instructing.
Any advice, particularly based on what provision is made under the Contract, would be much appreciated.