As part of the tender submission the Contractor has stipulated many clarifications and assumptions on which they based their total tender of the Prices. This was clearly referenced in the form of agreement and forms part of the Contract under an appendix.
A drawing in the Works Information did not specify an actual depth for the excavation, but did specify ‘within 1 metre’ of an asset. The Contractor clarified what depth they were going to excavate to and based their Prices on their own depth. The assumed depth later turned out to be 30% deeper than the Contractor’s clarification. Would this amount to a Compensation Event? i.e. does the Contractor’s tender clarification stand contractually or has the WI not changed?
Furthermore, the condition of the asset that was being excavated around (in the same excavation) turned out to be in poor condition. Therefore, as the soil was disturbed, additional damage was naturally caused to the asset. The Contractor has clarified in the tender that they were not taking responsibility for the condition of this asset as a clarification. Again, would the clarification stand and the Contractor be entitled to a Compensation Event?
Usually if the Contractor submits any form of proposal with their tender it would be entered in Contract Data Part 2 as Works Information for the Contractor’s design. Any contract condition amendments would hopefully be agreed and reflected in the actual conditions of contract. In this case, however, it seems like there is a mix of condition requirements and specification requirements mixed together and added as an appendix. This makes the status a little unclear, however, I am assuming that it becomes part of the conditions of contract and scope requirements.
There seems to be 2 separate issues here, the depth of excavation and the condition of the existing asset. You don’t say whether the Contractor has any design responsibility so I assume that they don’t. Consequently if they are to construct in accordance with the specified design, then their obligation would be to comply with the contract requirements, which include their assumptions. Provided there was no ambiguity or inconsistency then I can only assume that they were to excavate to the depth in their assumption. You don’t say why they excavated 30% deeper, but this would be beyond the requirements of the scope and likely be a compensation event, possibly a change that should have been instructed by the PM.
The ‘existing asset’ issue is possibly more straightforward, especially if the Contractor has no design responsibility, as they are obliged to excavate to a required depth. If the additional depth is the resultant cause of the damage and this is a compensation event, then any such damage would not have been a reasonable consideration at the contract date, If it was known at the outset that the Contractor would have to excavate 30% deeper then that would most likely have changed the methodology and the consequent protection measures for the existing asset. If it was only known during excavating, due to soft spots in the ground for example, then the decision to excavate deeper would have led to the deterioration of the asset but only in combination with the original excavation, so you can’t say it was entirely due to the additional 30% depth. Under NEC4 this would likely be a liability issue but it is not so clear under NEC3, except for the Contractor’s clarification which seems to address this matter.
Ideally, the clarifications and assumptions should have been allocated to the correct place in the contract, whether that was a change to the conditions, in Contract Data or the Works Information. However it seems that the intention was clear and that the assumptions were included as part of the contract documentation, so notwithstanding any ambiguity or inconsistency I see no reason why they should not be accepted.