EWN and Instruction to proceed

An EW has been given stating that there is a risk of asbestos and therefore a delay so that testing can be undertaken to confirm if present and if proven further delay for disposal.

It was decided the best course of action would be to just assume asbestos present and continue with disposal to save on programme.

The contractor is requesting an instruction and CE however, I don’t believe this requires an instruction as there is no change to the Scope. This is purely risk mitigation and the outcome of the EW meeting.

Is an instruction required that they should proceed under the assumption that asbestos is present? And is this a CE?

Its not possible to answer the question without understanding where the risk sits and whose risk is being mitigated.

Does the Contractor consider the discovery of asbestos would (when found) be a compensation event under clause 60.1(12) and does the PM agree that would be the case, and is it a high probability. In which case, if off site disposal is considered the best solution (time and money to the Client) then it would seem sensible to instruct. The alternative being to wait for the testing to then determine if there was a compensation event or not and deal with it accordingly.

If the risk sits with the Contractor then it is mitigating its own risk and an instruction is not required.

Taking material off site when not classified does raise a question under waste transfer but that’s not part of the question!

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Alastair,
You say there has been no change to the Scope but really the question is, does there need to be a change to the Scope? You need to identify what the Scope and/or the Site Information said about asbestos. I also believe (but not an expert) that the risk of asbestos in existing buildings or on property is a risk which the owner (Client) has to carry in law, so it could be a Client liability under clause 80.1 and a CE under 60.1(14)? Worth checking everything to make sure.

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The Client may be a Duty Holder under the Control of Asbestos Act 2012.

Although a Duty Holder is responsible for ‘managing the risk from asbestos’, any obligations in relation to dealing with the asbestos could be ‘contracted out’.

The contract should determine what these obligations are in accordance with the Works Information and/or Site Information as per @stevebrownassociates reply and whether the matter constitutes a ‘physical condition’ CE as per @dave_bates reply.

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Thanks @Andrew_W-I @stevebrownassociates @dave_bates

The Scope does include for the contractor to assess the risk and mitigate against deleterious and hazardous materials and for it to either be treated on site or removed to a suitable licensed facility etc.

It sounds like perhaps it could be a CE under 60.1(12) however, the asset is old and I would’ve thought the risk of encountering would not have been so small that it would have been unreasonable to have allowed for them.

There is a Z clause that states Site Information is not warranted correct and the contractor is responsible for checking it’s correctness.

Hi Alastair,
if it’s a CE under 60.1(12) then it is the difference between what was reasonable to have allowed for based on a judgement against what the SI and a visual inspection would have suggested was reasonable (60.2), and what was actually found.

I’m not sure the Z clause will change anything, if SI was included and no other amendments made then clauses 60.1(12) and 60.2 will determine if it is a CE or not.

On a personal note, I really don’t see the point of Z clauses that effectively say here’s a load of information but you can’t place any reliance on it and we’re not responsible for it’s accuracy, why provide it in the first place? Also, when is the Contractor going to be able to check it, probably not at the time of tender? So for any contractors facing this clause beware and make sure it’s not preventing you from claiming the CE 60.1(12), if it is, then make sure you price for the risk.

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Hi Andrew, I’ve actually heard of an Adjudicator deciding that the Client couldn’t contract out of the risk of asbestos, it surprised me but I have to say that I don’t know all the precise details and/or circumstances.

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