I am currently working on an NEC 3 Option C contract.
The works information includes an appendix (Appendix 1/10) stating design elements, of the permanent works, that the contractor is required to undertake. Note - The appendix does not state how the contractor is supposed to design these elements.
In this instance, the Contractor is required to design an element of the permanent works but this element of the works has not been included in Appendix 1/10. However, the design of the “missing” element is clearly stated in other appendices in the works information.
Is this is an ambiguity/ inconsistency in the works information and thus a CE assessed under cl63.8?
or
Should the works information/ contract documents be considered as a whole, as the project manager has stated, and thus there is no entitlement to a change of the prices, etc as the cost of the design should be included in activity schedule.
Please advise.
Much would depend on the exact wording of the design obligations to establish if there indeed was an ambiguity or inconsistency that needed to be resolved in the first place. In your case it seems like the design obligations are not entirely contained in Appendix 1/10 and as such the presence of a positive obligation in another part of the Works Information may not be ambiguous or inconsistent.
However assuming that there was one then the correct procedure to follow is at clause 17.1 which requires a notification followed by an instruction resolving it from the Project Manager. The instruction would presumably make clear that the Contractor should design that “missing” element.
Then there is the question of the compensation event which would have to be under clause 60.1(1). Again whether or not the Contractor is entitled to a compensation event will turn on the facts, what did the Works Information say and how was it changed? Again if we assume that there is a compensation event then you are correct that clause 63.8 would apply to the assessment which would be in the favour of the Contractor.