NEC ECC: Clause 60.1 (12) and Z clause regarding Site Information accuracy

Site Information including ground, subsoil, ducting, cables etc was provided by the Client prior to the Contract Date in Pre-Construction Information, this was supplemented with a Z clause in the Contract Data stating that Site information was provided in good faith but not warranted correct and the Contractor should check the correctness of any such site information they rely on to provide the works.

The Contractor has relied on the Site Information for their design, which turns out to be incorrect, and now cannot complete the Scope. It is my opinion that they cannot claim under 60.1(12). Is this correct?

Hopefully the Client has also deleted clause 60.3 as well, or that may lead to an ambiguity. What the Client is seeking to do is insert a ‘no reliance’ clause and not provide any warranty in respect of any provided Site Information.

From my reading of your question, the matter is not just about a physical condition CE but about the design and design responsibility, which will obviously be ‘influenced’ by whether secondary X15 has been selected.

For a physical condition CE, Site Information is one of the issues to consider. Although in your contract the Site Information cannot be relied upon, in terms of accuracy, the tests in sub-clause 61.1 (12) and 60.2 still apply and what would have been reasonable (or unreasonable) for an ‘experienced contractor’ to have allowed for, at the Contract Date. That may mean assuming the Site Information as being accurate, if that test decides that to be the case, irrespective of any ‘exclusion of warranty’ clause.

I agree with Andrew’s answer and this is a common question. What the Client’s lawyer is trying to do is get out any claim in law for innocent or negligent misrepresentation and I will assume they have successfully done this by writing that clause.

However, without deleting the compensation event for physical conditions, they have not got the Client off the hook for unexpected physical conditions as defined in the contract in clause 60.1(12) with reference to 60.2.