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NEC ECC: Can there be "time bars" in the Works Information
The contract is NEC3 ECC Option C
There is a section in the Works Information that places a requirement on to the Contractor to check the consistency of the documents in the works information within 30 working days of the Contract Date, and to report their findings to the Project Manager.
I would have thought that the only way an amendment to a core clause could be achieved in the Z clauses.
However, does this place a time bar on cl 63.8?
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Although I don't like it nothing to stop them doing this if this is the rule they have set at tender stage which the Contractor has then submitted a price for. They are giving a timescale within which after that time they can not notify ambiguities between the documents that form the Works Information. So in effect it would be placing a time-bar on notifying the CE in the first place so you wouldn't even get as far as 63.8 because it would be denied as a compensation event in the first place.
If Contractor doesn't like that they either don't price, try to get it amended to a longer timescale or simply price risk accordingly.
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I would disagree with Glenn here. I think Glenn may well be right that this is their intention and if there is amore obvious ambiguity or inconsistency that you miss in the first 30 days, then that could well lead to a 'discussion' about how thoroughly the check was done and whether, as a result you should have given an early warning.
However, this requirement is in the Works Information, not the conditions of contract as an option Z clause and from what you say, there is no amendment option Z clauses. So I don't think the time bar in 63.8 would apply as that applies from the Contractor actually becomes aware.
What might well apply is the lack of an early warning reduces the assessment of a compensation event if notified as such by the PM when instructing the quotation i.e. an experienced contractor should have picked it up when doing the review. But note:
- it does not necessarily reduce it to zero because the Contractor did not pick it up, just the effects of picking it up later than in the first 30 days and
- I think it is going too far to say an experienced contractor would/should pick up every ambiguity or inconsistency, however small, in such a review.
Is there another side to this interesting question.
The Contractor does not carry out the check so it is therefore technically in breach.
The lack of a check does not alter the fact that there is an ambiguity or inconsistency (if there is one).
The PM would still be obliged to change the Works Information and the change would be a CE. Timing doesn’t enter in to the assessment of the CE because the PM is required to instruct.
The giving of an EW (or not giving) would be relevant to the time at which the (experienced) Contractor became aware of the event. The event being the PM instructing the change, not the non-checking by the Contractor or the ambiguity itself.
I don’t therefore think the assessment of a CE could be reduced ie based on an early warning having been given earlier.
I suspect however that the Employer could consider the Contractor in breach and therefore responsible for any additional costs. So there could no doubt be a separate discussion over the cost to the Employer had the ambiguity been raised earlier.
I take/agree with Jon's point here. I was assuming with my answer that if they have gone to the trouble of giving you a time limit to review all of their Works Information drawings to identify any issues, they have normally taken the trouble to also write that any of their amendments supersede any other clauses. That being the case they would believe that their amendments supersede the ambiguity clause.
This is a clause that is very often amended by Clients where they put much more risk on the Contractor for the errors in their documents.
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