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NEC ECC: Ambiguities and inconsistencies

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NEC3 Option A with Z clauses, a Marine Contract to construct a harbour

The tender specification included in the Works Information states that Harbour dues will not be levied on the contractor's craft, that was later amended by a response to a tender query to exclude vessels that are not delivering cargo for the project or vessels not unloading efficiently.

In a tender query and response that is part of the works information is was clarified that harbour dues would be levied on the contractor's crafts when they are sheltering in bad weather.

The Contract has been amended as follows:

Clause 17.1 - amended to state instructions issued under this clause do not give rise to a compensation event.

Clause 63.8 has been deleted

Clause 60.1 (12) has been amended to state that the prices will not change

The PM has signalled there is an ambiguity between (a) the original tender specification that stated that harbour dues would not be levied against the contractor's craft and (b) the tender response that stated that under some circumstances the contractor's craft would be levied harbour dues i.e. when taking refuge in bad weather or if they are delivering cargo not for the project.

The Employer later wrote to the Contractor advising that ALL contractor's vessels would be charged harbour dues under all circumstances. The Contractor then issued a compensation event for this.

The PM then instructed under Clause 17,1 to provide an instruction to remove an ambiguity, which under 17,1,was not a compensation event.

Has the PM sought to create an ambiguity that the employer would benefit from?
When reading all the contract documents together is this really an ambiguity?
Should the PM have instructed this under clause 14.3?
asked Nov 6 in General by iainraeqs01 (480 points)  

1 Answer

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From what you have said, you could reasonably argue that there isn't an ambiguity in the Works Information because, if you read the documentation together, as you have pointed out, it is clear that harbour dues will not be levied, except for the reasons stated, that is delivering cargo for another project, not unloading efficiently or sheltering in bad weather.

The subsequent letter from the Employer advising that harbour dues would be charged under all circumstances would have no effect unless formally instructed by the PM.  This would amend the 'baseline' scope requirements above and would constitute a compensation event.

I agree that the PM instruction should have been given under clause 14.3, along with a corresponding notification under clause 60.1 (1) along with an instruction to submit quotations.

As a point of clarification I'm not sure that you meant to refer to 60.1 (12) or what was meant to be referenced otherwise.
answered Nov 7 by Andrew W-I Panel Member (24,040 points)