NEC ECC: Change to the Scope

Can somebody advise on the following scenario that we’ve got
The Project Manager instructs a change to the Scope to include additional works, one delaying Completion and one not.

How are these additional works assessed in terms of their impact on the programme?

If the Client had decided not to undertake these two additional items of work at the current time, what provisions are contained in the contract to assess the programme impact prior to being committed? Could additional work be instruction after Completion - is there any disadvantages of this?

You are entitled to an extension of time for the additional work that delays planned Completion as shown on the Accepted Programme current at the dividing date (clause 63.5).

The PM could have used their powers at clause 65 to instruct the Contractor to submit a quotation for a proposed instruction. This would have meant that the cost and time impact of the instruction would have been known in advance of the additional works being instructed.

Whilst there is no express term in the contract to constrain the PM from instructing additional work after Completion, there is an implied term that they won’t do this as by definition the PM has already certified that the Contractor is finished i.e. complete. There is case law to support this position. So the Contractor would not have to obey an instruction for additional work issued after Completion however the Contractor is free to agree to do it if they want to.

Note also that all additional work has to be in connection or incidental to the original work. The Contractor is obliged to Provide the Works in accordance with the Scope, and the term “Provide the Works” means to do the work necessary to complete the “works”. The term “works” is italicised in the contract which means it is identified in the Contract Data. For example a contract for the construction of a school could not be varied in order to construct a hospital.