CE's on Option A Contract

We are currently working on an Option A. The contract was let with the design being what can only be described as a sketch (even though it is described as RIBA 4) and a number of outdated reports etc.

We as the MC have been contracted to utilise this sketch and other documents and create a RIBA 5 design and undertake the works (design and build). However, in the design stage a number of design changes were required and have been made, for example there are more walls to be built, larger floor areas etc. My question is are these design changes and the associated works changes valid CE’s under clause 60.1 (1)? or would they be considered our design development and our risk considering we provided a lump sum price to develop the design to RIBA 5 and undertake the works knowing the poor state of the design at tender and contract execution?

Jon, in principle, you would first need an instruction by the PM. Then, you would have to assess the instructed changes against the wording in the 2nd bullet point of cl. 60.1 (1), i.e. are these changes made at your request or in order to comply with the Works Information provided by the Employer? If the answer is yes to either, then the changes would not fall under cl. 60.1 (1).

I hope this helps.

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Thanks Peter. Unfortunately we did not get PMI’s for these design changes - we have simply developed the design as per our design obligation and said design differs from the clients design (a sketch) which we were looking to raise as CE.

No worries Jon. You might be able to give it a shot if there are emails, minutes of meeting etc. where the client/PM requested those changes over and above what the WI (incl. sketch) indeed required. I understand this is not a straight forward issue though. Good luck!

It all depends on you obligations.
If you have a contract to develop a concept design to a full compliant design to a certain specification and/or building code, then you may struggle to get compensation.

If the spec and/or code of practice are such as they forced you to deviate from the concept, then they wont be compensation events. For example, if the sketch didn’t have a fire escape and building regs require one, then you will not be entitled to a CE for that.

Overall, you should be careful chasing the PM for every change particularly if the original sketch is part of the Scope (or works information) as he is not obliged to accept changes to the Scope and can make design acceptance very difficult if the relationship goes south.