Ambiguities 17.1

NEC3 and NEC4 Contracts Main options
1

See the below clause from an NEC3 Option A subcontract. Does ‘resolved by the subcontractor in accordance with the subcontract’ provide that such ambiguity (arising from stated design) is resolved by the subcontractor at his cost/time or can this give rise to a CE?

“Where there is any inconsistency between, on the one hand, any of the ECS core Clauses as amended, the main Option A Clauses as amended, the secondary Option Clauses as amended and/or the dispute resolution Clause W2 as amended, and on the other hand any other part of this Subcontract, the former shall prevail and this shall not be treated as an ambiguity to which this Clause applies. Subject as aforesaid, the Contractor or the Subcontractor notifies the other as soon as either becomes aware of an ambiguity or inconsistency in or between the documents which are part of this Subcontract. The Contractor gives an instruction resolving the ambiguity or inconsistency unless
the ambiguity or inconsistency is in the Contractor Pre-Contract Design or any other design of the works in which case such ambiguity or inconsistency is resolved by the Subcontractor in accordance with this Subcontract.”

2

This is a terrible amendment and a good example of how using more words to say the same thing doesn’t help with clarity.

The final sentence is relevant to your point, it’s been drafted to relieve the Contractor of liability for CEs as a result of ambiguities and inconsistencies in their pre-contract design as without an instruction it’s hard for the Subcontractor to trigger clause 60.1(1) “The Contractor gives an instruction …”.

Assuming this issue has cropped up I’d be trying to argue that the aspect of the design in question is not ambiguous or inconsistent, but that it’s wrong / incorrect etc. Without an instruction you’re on a sticky wicket unfortunately.

3

Appreciate the response, thankfully we are just agreeing terms and what you’ve said matched my reading of it. The Contractor had argued a different position and I wanted to be sure!