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NEC ECC: Works Information or Estimate Asumptions & Exclusions, does this constitute a CE?

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I have a situation regarding ground investigation works on our project, working as the main contractor under an NEC 3 ECC Option C. We are currently within Phase 2 of the works following the Phase 1 work that has already been completed. Within the works information document, it states that we must carry out ground investigation works to back up our piling design.
Works Information detail
1.1.1.    Ground Investigations
1.1.1.1.    Phase 1 Ground Condition and GPR Surveys
The Contractor has undertaken ground condition and GPR surveys within Phase 1 which shall form part of the Site Information, Further GPR Surveys will be required within Phase 2 and will be used to inform and support the design and construction works.
1.1.1.2.    Phase 2 Ground Investigations
Ground investigations shall be carried out by the Contractor to confirm ground bearing capacity thus confirming the suitability of the proposed foundation specified on the detailed design, and to provide underpinning for temporary works as required.
1.1.2.    Piling Design
The Contractor shall be responsible for the design and installation of suitable piling works in Area 6 and piling foundation in, Area 5 West and Area 5 East.  The Contractor shall undertake ground investigation work to underpin his piling design.
However, within our assumptions and exclusions document submitted in support of the Price Tendered and detailed Estimate we have stated that ‘any further Geotechnical investigation activities and contracts are excluded out-with of those already undertaken in Phase 1.’ There were no investigations completed in Phase 1 which was a reimbursable contract. Also, in the assumptions and exclusions ‘Any Trials work other than as specifically agreed, identified and included within the estimate.’ But the estimate does not include for any trials work.
I believe this constitutes a CE, as we have not included any costs for it within our estimate, and clearly stated so in our exclusions. During our estimate we did not have a detailed design.
asked Dec 18, 2018 in Compensation Events by kchastney (190 points)  

1 Answer

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The main issue with assumptions and exclusions in tender documents is whether they are incorporated into the contract documentation.  Clause 12.4 makes clear that the contract is the entire agreement between the parties.

You are further required, under clause 20.1, to Provide the Works in accordance with the  Works Information, that is to comply with the stated requirements, whether it describes how you are to work or what you are to do.

It looks like you have a 'design and build' contract, let 'on the basis' of the information obtained under Phase 1 (which now becomes part of the Site Information).  It also looks like the WI is clearly worded, especially at section 1.1.1.2, which obliges you to carry out ground investigations to confirm ground bearing capacity.

Consequently I don't see why this would be a CE under the contract.
answered Dec 18, 2018 by Andrew W-I (16,200 points)