NEC ECC: Clause 63.1 - "Should have been instructed...."

NEC3 and NEC4 Contracts Compensation Events
1

Apologies in advance as given current circumstances I do not have a full suite of NEC documents to hand but my question is concerning clause 63.1.

I am currently working on an D&B NEC3 Option A contract and note the difference in wording from previous additions, namely the removal of “date when the Project Manager instructed or should have instructed the Contractor to submit a quotation”. The bit in question is the “or should have instructed”. What would be the reason for the change?

I have an issue where a PM provided new works information but didn’t instruct it formally. Several months later it was instructed via a PMI but there is evidence (and indeed it is accepted by the Contractor) that they have been working on the information back from informal issuing.

However under NEC3 the CE is priced on the date of formal PMI being issued. Had the wording “or should have instructed” remained this would have made it easier to argue the initial informal instruction is the starting point.

I suspect in asking the question, I may have answered, is this wording removed to provide clarity and remove ambiguity on when something “should” be done? With it removed what argument, if any, is there, given they started working on new WI much earlier than formal PMI, that the CE should be based on the informal issuing of the new WI?

2

Yes, you have answered your own question. Cl 63.1 confirms the date the assessment should be based on and clarifies the switch point from using actual Defined Cost to forecast Defined Cost.

Your question is interesting, how did the PM provide new Works Information if it was not under instruction. Contractually the Contractor is to provide the works in accordance with the Works Information so if the Works Information has not been changed under the contract then it should continue to work to the original. This emphasis the importance of timely notifications by all parties.

If it is accepted the Contractor was working to the new WI prior to the formal instruction then the CE (change in WI) should be based on actual Defined Cost to the date of the PMI and forecast Defined cost from that date.