We are PM on an NEC3 Option B contract, between tender and contract award additional site investigation was carried out on the footprint of a building which was demolished. This was not included as Site Information in the contract as it was not available at the time. We wish to issue this information to the Contractor, appreciating this is new information which will require a compensation event. Given the PM does not have authority to instruct changes to the Site Information, the only way we can instruct this is as Works Information, otherwise we would have to rely on the Contractor to raise a CE under 60.1(12). What is the best way to deal with this?
That’s a difficult question, and will be dictated by what this information is and what you expect to happen as a result of it. Normally the SI is fixed, and effectively forms a baseline for CE 60.1(12). You can’t change that, as its a measure of what was known on the Contract Date.
I’m not clear how you can ‘instruct’ Site Information, and putting it in the Works Information seems troublesome to me. WI describes the works and constraints on them; if this information has the effect of either changing the works or the constraints, then it will need to be instructed anyway.
My instinct is that the best thing to do is raise an EW and get round a table for a specific meeting (or meetings) with the Contractor to decide what the impact of this information is, rather than you trying to deal with it unilaterally. That should then lead you to the right answer. Another benefit is that both parties are obliged to try and minimise any impact.
The Site Information cannot be changed except for the provision within the January 2023 amendments of clause X22, which would not apply in your situation.
As Andy has said, such information would not constitute Works Information unless it expressly contains any specific requirements or constraints in relation to the ‘works’.
A possible contractual ‘change’ could be where the construction phase plan or health and safety file is required to be revised in accordance with the Construction (Design and Management) Regulations 2015. This would depend upon how such matters have been addressed within your contract (role appointments, Works Information requirements etc), notwithstanding any corresponding health and safety obligations.
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Thanks Andy. This information will impose an additional constraint on how the Contractor provides the works, and we expect this to result in a change to the prices, whilst it describes the site conditions, I have maybe confused the situation by referring to it as Site Information. It needs to be properly communicated to the Contractor, so we are proposing to issue as an instruction under cl 14.3 change to the Works Information, why do you think this could be ‘troublesome’?
Hi, I assume from your comments that the additional SI will show conditions that are worse than could have been reasonably expected at the contract date and you would be accepting of a compensation event under cl 60.1(12).
That being the case I would suggest you raise the additional SI under an early warning and have a meeting to discuss. One solution would be for the PM to notify the CE and the Contractor to prepare a quotation based on the additional SI as a PM assumption that would be the conditions to be encountered.
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If you were to issue something that is actually new SI post contract, and as WI, you would be bending (breaking?) the rules, and I can only see problems. Lots of heat, not much light. Hence my reference to trouble!
It seems that is not your intent though. In principle, if you change the WI, no problem. Its a CE, and the Contractor gets put back in the position they were previously in. All good.
What I’m concerned about there is what both Andrew and Dave have also raised - what is the change?
You presumably know what the change in physical conditions is, but do you know the implications of it? Do you know what impact it has on design and the works? Even if the answer is a clear yes, I think going the EW path and having a conversation is the right way to go, as it will be the quickest way of getting expectations aligned and making sure that an instruction is received as intended. CE can then be raised in whatever way you agree is best, through the EW process - but I would be upfront in saying that you know its going to have an impact, and I think Dave’s suggestion of basing on PM Assumption is probably wise.