I have used the NEC3 Option B contract for a civil engineering scheme which entails overlaying tennis courts. As part of the Works Information, we did not provide the Contractor with any ground investigation for the tennis courts before the resurfacing works started. You would assume that the tennis court construction it is not as strong as normal highway construction. During the resurfacing works, the Contractors large paving machine sank. As a “competent Contractor”, it was their choice to put large machine onto the tennis courts, and from past experience they should have put a smaller paver on the courts or asked for any site investigation. Would you say that the Contractor’s obligation is to Provide the Works in accordance with the Works Information, and they are entitled to assume that a competent Employer has provided the right Works Information? or given the Contractors experience, they should have carried out site investigation before they decided what piece of machinery to put on the tennis courts?
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You are correct, the Contractor is responsible to Provide the Works in accordance with the Works Information. Therefore if there is nothing within the WI that would require the Contractor to use the “large paving machine” then the Contractor can select which Equipment it uses.
There could be a debate about the physical condition of the existing surface but it seems that the condition would be visible from a site inspection and therefore the Contractor should have chosen appropriate Equipment.
I’m not clear on your comment regarding the right Works Information unless the WI stipulates what Equipment to use. If the WI stipulated the “large paving machine” then the Contractor is still responsible for not damaging the existing surfacing and again a site inspection may have highlighted the potential issue.
The question therefore is if there is a compensation event under clause 60.1(12) and having regard for the provisions on clause 60.2.