Hi
Really a follow up question in relation to the answers provided to the below post.
NEC ECC: PM instructing design work on a contract with no Contractor design
The background is we’re a contractor working on a scheme, and we have a relatively simple design obligation to design some handrailing. The locations for the handrailing is indicated on the general arrangement drawings that forms part of the scope. We had assumed at tender because the location for handrailing is already part of the scope, our design would be typical detailing showing elevations, sections, type of rail etc.
We’ve provided our detailed design, but the client is asking for a revised set of GA drawings indicating a revised layout with further gates / locations of handrailing etc. If we provide this would there be a conflict because our layout would not match the scope drawing, could we receive a defect notice if we change the layout ?
They are also instructed us to ‘design and build’ a GRP Enclosure and base for an ancillary piece of equipment to the works as a change to the scope. We already have some design responsibility. But the kiosk base may require further planning permissions, which I’m conscious in relation to 27.1 may be our obligation to obtain. Which would not have been the case with the handrailing. Could this reasonable be refused as ‘not in accordance with the contract’ ? As we’d have to appoint a planning consultant etc which is not something we’re set up to do.
Thanks
1 Like
Hi John, the PM (not the Client) can instruct any change to the Scope (cl14.3) and this can include increasing the Contractor’s responsibilities to include design, etc. The Contractor cannot refuse to comply with the instruction, see clause 27.3, but see my advice later in relation to dealing with the subsequent CE.
It sounds as if your original responsibilities were set out in the Scope, were they clear to you or did you or do you need more clarity on what they were, i.e. did they require a revised GA layout or not?
If the Contractor has to ask for clarity on the Client’s Scope and if the PM provides further clarity, then clearly the original Scope was either ambiguous or inconsistent, in which case a clause 17.1 notice should served which in turn would require the PM to instruct a change to the Scope in order to provide the further clarity, which in turn triggers a CE. Under clause 63.10 a CE which is in order to resolve ambiguity/inconsistency is read in favour of the Party which did not provide the Scope.
I realise that’s I am taking you backwards but it is important to understand your original responsibilities.
Another point to understand also is that when reviewing your design for acceptance the PM should be careful when commenting, they can easily instruct a change to the Scope through their corresponding comments, i.e. “that’s all great but I also want you to prepare a revised GA”. the comment is in writing, it’s not a constraint already in the Scope so the PM’s comment has just changed the Scope.
For all CEs arising from the PM’s instructions, the PM is obliged to notify the Ce to the Contractor and instruct a quote - see cl61.1 & 61.2.
Before instructing the quote the PM should discuss with the Contractor possible alternative ways of dealing with the CE, in your case the PM should realise that they are possibly taking you outside of your comfort zone or capability, and so should discuss with you about exactly what is required in terms of revised planning applications, etc. The discussion should consider whether the Contractor is both capable and insured to carry out such work, if not I think it would become an impossible requirement which under clause 17.2 must be notified to the PM and the PM instructs a resolution by changing the Scope.
Also, be aware of clause 80.1, it lists the Client’s liabilities and in particular the first 3 bullets, if a Client liability occurs it gives rise to a CE under 60.1(14).
Again, I realise this is a lot to take in so if you want to discuss anything further let me know and I will try and respond as quickly as I can. Good Luck.
1 Like