Scenario: We are operating as a Contractor on an ECC NEC 4 contract with amendments. The Client has a Project Manager who has done design and is doing contract administration. The design prepared was insufficient and we needed to use considerable RFI to get the drawings to a state where they could be accepted or the building physically wouldn’t work. During this process, additional steel was added which amounted to considerable additional work.
We see the additional steelwork as neccesary because the original design was flawed, therefore it is a design change. The PM is using the phrase “design development” despite there being no definition in the contract. Our CE notifications are on the basis of 60.1.1 but could arguably be 60.1.14 (failing in initial design).
The client responses seem very generic and cite CDP, but the phrasing around CDP is very generic and doesn’t negate the fact that these are changes. My senses tell me the contract admin side of the PM organisation doesn’t want to permit claims as a result of the design wing of the PM organisation to the Employer for flaws asking for additional money. We are not a design and build contractor and we can’t see any reason why our entitlement would be extinguished. We should not have to pay for insufficient design.
Can someone shed any light on this particular instance or this theme in general?
We are engaged under an NEC 4 ECC with very generic CDP’s
No design novated.
We build and construct and use in house detailers to “fill in the gaps” via the RFI process to produce designs (shop drawings/fabrication drawings) for acceptance by others.
you are not the designer so all the changes to the design drawings (Scope) are compensation events unless they are made at your request to assist your fabrication.
Thank you, this is what I thought. No, the items are items that were required otherwise the building wouldn’t physically work, i.e they should have been designed from the onset.
The client is still nullifying our entitlement via “design development” and generic CDP phrases and not given sufficient narrative as to why these aren’t changes. Any other angles to go at? The CE’s are all notified under 60.1.1, we’ve exchanged countless narrative, before and after drawings etc but the client is using “CDP” as a reason to not pay.
I don’t have a silver bullet. You just need to keep reminding the PM that changes to the Scope are compensation events, you are not responsible for the design. If you don’t get anywhere then you will have to consider turning the matter in to a dispute