60.1(1) exception bullet 2 not for valuation engineering

NEC3 and NEC4 Contracts Main options
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NEC3 ECC Option A

The Contractor are to replace a piece of equipment as part of the works, stated as such in the Works Information.

In some preliminary meetings the Contractor expressed a concern with replacement of equipment and the associated risks, they asked if we would consider refurbishment instead of replacement. It was discussed and we also felt there were associated risks to the project as a whole should the equipment be removed/replaced and therefore stated that we would consider the change, but the refurbishment would have to provide the same quality/life as a replacement would.

The Contractor has submitted the particulars of their designs and the refurbishment has been proven to be of a suitable quality standard, so I am happy to accept this change.

The current issue we have is how the change to the Employer’s Works Information is administered.

My view is that this is a change to the Employer’s Works Information, there will be a change to the Prices with no change to Completion Date. This is because the Works Information clearly states replacement, we are now agreeing to a change in Works Information to refurbishment.

The Contractor believes that 60.1(1) “a change to the Works Information provided by the Contractor for his design which is made either at his request or to comply with other Works Information provided by the Employer” is to give the benefit of Contractor design savings (VE) to the Contractor. And therefore there is no Compensation Event.

In Contract Data part 2, the optional statement regarding Works Information (provided by the Contractor) states “NONE”, however the Contractor are stating that the designs submitted to date become the Works Information provided by the Contractor and therefore fulfils the exception set out in the second bullet point of Cl60.1(1) i.e. a change from “NONE” to the accepted design proposals.

I would like to treat this pursuant to clause 63.10.

I believe that they possibly will be making significant savings by the change and this is why there is such a discussion on the point. Irrespective of value, I am unsure if they are correct or if I am. Could you please advise? Also, what the case would be had the Contractor included the optional statement regarding Works Information (provided by the Contractor)?

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Hi and welcome to the Group.

If the Employer’s Works Information is specific in that the Plant is to be replaced with new then changing the requirement to refurbishment is a change to the Works Information and is a CE. The second bullet is not applicable because it is not the Contractor’s Works Information that is being changed to comply with the Employer’s Works Information – it is the high level WI that is being changed.

Yes, the designs submitted by the Contractor (when accepted) become Works Information but it is required to comply with the Employer’s Works Information. If the Employer’s WI requires new and the Contractor’s WI is for refurbished then it does not comply.

If the optional statement had been used then the same would apply. The Contractor’s WI is how it is going to comply with the Employer’s WI.

If the Employer’s WI was silent as to whether new or refurbishment was required then the Contractor is entitled to choose which option provide it complies with all stated requirements. If that is the case then the matter would not be a CE.

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