Clients Construction Drawings/model was Wrong and has issued a defect and non conformance report

We are currently in an NEC 3 Option A contract.

Post contract signing the client had issued a GPS construction Model for duct trench excavations. our excavators have followed this model to the exact dimensions.

The client has now issued us with a defects notice and said the formation and depths we used in our ducts is wrong and we should have referred back to the typical road/track crossing details.

they will not accept a CE for this. and said we should of reverted back to them on this.

where do the construction drawings strand in order of priority ? hand in hand with works information?

where do we stand on this?

the discrepancies clause within the contract is removed.

is it a CE under 60.1(8) The project manager or the supervisor changes a decision which he has previously communicated to the contractor


How was the GPS construction Model issued to you. It is, in itself, a change to the Works Information and a compensation event. The work you have done is not therefore a Defect if it complies with the Model (the Works Information) and if it needs revising you should request a further compensation event.

If the Model was not provided formally, or you did not confirm you were required to work to it, then the work is a Defect (it does not comply with the Works Information)


GPS model was issued via email post contract signing. That being said it was common knowledge that it was going to be issued after contract signing to give the contractor levels to work to.

Is this still a change in the works information ?

We were happy to work to their model. The issue is their model told us to install a duct at a certain depth now after it’s been laid they say it’s too deep and want it corrected under a defect.

I think it’s a clear CE although the client is saying it is definitely not.

In the scheme of things the monies is minimal however the time to fix the delay and on lost production has a knock on effect that missing key dates will cause LADs


I’m not clear on what the difference between the original WI and the model in the email is? Was the contract silent on the required depths at the time of signing the contract? If the WI stated a depth, and the email gave different depths, a PMI should’ve been asked from the PM, or an NCE submitted at the time. If no PMI was given then you’ve effectively delivered something that isn’t in the WI and it would be a defect. That being said it seems the PM hasn’t acted in good faith by not using a PMI/notifying a CE in the first instance (assuming it was the PM who gave you this email and not someone else in their team - you should only take instruction from the PM or Supervisor).

I’m not sure what the timescales involved are, but you may find this matter time barred.

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If the Model was issued by the Project Manager then it is reasonable to assume its an instruction. If it contains information that was different to the Works Information (at that time) then it is a change to the Works Information and a compensation event. If that is the case, and you have not already notified, you should notify now that the matter is a compensation event. You are not time barred because the PM should have notified at the time.

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