The Employer included a few drawings for a specific type of work on site. The drawings they have used are from a certain subcontractor.
They are under the impression that they have specified that we use this subcontractor as it is their spec included in the Works Information.
We are asking to use a like for like spec from another subcontractor. They have refused and insist the subcontractor is specified.
Are they even able to specify a subcontractor in the NEC?
If they do wish to specify a subcontractor does it need to be instructed? If instructed are they liable for the lost buy gain going to a compliant spec?
It would depend on two things:
- if they are a public sector client or a utility then they are subject to the ‘The Public Contracts Regulations 2015’ and almost certainly should have run a separate competition for this supplier. Practically though, all you can really do is threaten to tell the internal compliance committee and alert other suppliers who would have liked to have competed and let them take up the challenge. Realistically, this might stop them doing it again, but does not help you.
- how tightly the spec is defined. If another supplier can meet them, then there is no contractual reason not to use the other Subcontractor. If they then insist on using the one who supplied the drawing, then the PM needs to instruct a change to the Works Information (under NEC3) or Scope (NEC4) which is a compensation event. The additional cost + Fee from doing this is the value and they may be some delay and resulting cost too!
What if the sub-contractors drawings were part of the original and tendered Works Info, so it didn’t reflect a change to the Works Info?