Missing of Secondary Option Clause X5 in NEC3

On one hand, the first bullet point of “Clause 1 - General” of Contract Data Part One specifies which Secondary Option clauses form part of the conditions of contract and Secondary Option Clause X5 is not included. On the other hand, the completion date of each section of the works is specified in later part the Contract Data Part One.

(1) Is there is ambiguities and inconsistencies in the contract and how can it to be rectified?
(2) Is sectional completion still applied in the contract?

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This is a surprisingly common situation, which some simple proof reading should address.

If you have a ‘form of agreement’ check whether this states which secondary options apply.

An order of priority (probably in the form of agreement) would likely be unhelpful as it would likely refer to a document rather than separate parts of the same document.

Having said this if it is clear that X5 was intended to be used and other parts of the contract align with this intention, such as sectional completion dates stated, a programme referenced in contract data includes these sectional completion dates, option X7 (if included) refers to amounts against each sectional completion date, etc, then this would be significant evidence to support the inclusion.

For clarity, notify an ambiguity to the Project Manager under clause 17 to obtain formal confirmation.

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Hi Tony, there most certainly is a provision for resolving ambiguities and inconsistencies, it’s clause 17.1. [sorry Andrew not 18]
Firstly and as Andrew has stated, the ambiguity needs to be notified by either the PM or the Contractor and the PM then has to state how it is resolved, not just for the purposes of clarity but because the contract demands this to happen - clause 10.1 act as stated.
The PM does not have the authority to change the Contract Data or any other condition of contract unless the contract allows, i.e. clause 14.3 allows the PM to change the Scope, so this cannot be resolved by the PM alone.
The only way the conditions of contract can be changed and this particular issue resolved, is through a clause 12.3 agreement which must be in writing and signed by the Parties. No one can be made to agree anything but it is probably better to reach some agreement than have an unworkable contract.
As Andrew points out this happens a lot but it cannot be resolved by what was intended it can only be resolved by agreement, if it was intended then the Client should have correctly completed the Contract Data, it says as much at the beginning of both CD1 & CD2 - “Completion of the data in full, according to the Options chosen, is essential to create a complete contract.”
Ambiguity will always be read against the drafter.
If it is clear from other aspects of the contract, such as the Scope, that sectional completion was required then I think it is for the Parties to agree sensible and reasonable dates.
Contract Data drafters take note, check it and check it again and make sure you understand what the Contract Data is about and what each section is for.

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Thank Andrew and Steve. It’s helpful.

In addition, on the side of the Contractor, can the Contractor argue that sectional completion is unenforceable until an agreement is reached between the Contractor and the Employer due to the missing of Secondary Option X5 in the contract?

Thank you.

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Tony, yes I think they can argue that, although the fact that the section and section Completion Date was identified in \CD1 you might think that it would be hard to ignore it completely. I think if it had been the other way around, i.e. X5 stated as included but no section or dates identified, they would have a much stronger reliance on the ambiguity.
As with all these types of errors/ambiguities, whilst the contract is clear that it can only be resolved through clause 12.3, if the Parties could not agree and were to refer to an Adjudicator, there’s no telling for sure what might be decided. From the fact that you are posting the topic I assume that the Parties are not exactly in agreement over whether X5 is in or not.
Is there any other evidence of discussions about the sections and dates, either prior to contract or are there any references to them in the Scope [Works Info]?
Without getting too far into legal stuff [because I’m not qualified to do so], the written contract is what should be enforced but if there is other evidence to clearly show that both Parties were aware of the sections and dates, then maybe someone would decide that they should be included - another one for the lawyers I’m afraid.
Just to reiterate my previous comments, if you have to rely on, or hope that a third party reviewer will decide in your favour, you haven’t done a great job in writing or preparing your contract. This goes for all parts of the contract not just the Contract Data but Scope, Site Information and any other document.
Good luck.

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