NEC ECC: Contractor pricing on incomplete Site Information

An NEC3 Option A, full contractors design, contract was tendered which included the design of 3G sports pitches to be “Sports England compliant” as stated in the Works Information.

The Site Information contained a soil report for the site. In the detailed report the result of soil samples was given, including the proposed area of the sports pitches.

The specific requirements to achieve Sports England compliance was not given but was assumed that a competent pitch designer/contractor would know this. Although there was not a specific statement that the soil type was suitable for sports pitch use, all results data covering type of soil found was given.

During a tender Q&A session the question of where the design responsibility sat for the design for the sports pitches was raised. In the notes of the meeting this was answered as “Sports pitches and drainage is to be designed by a specialist. GA of pitches and levels is to be issued”. The GA’s and levels were subsequently issued.

The successful bidding contractor is now claiming that tests he has had carried out post tender to complete his design show that the soil and drainage is not suitable for sports pitch use and the additional works to make it so (some £700k) are a CE.

The client believes that this should have been a priced risk within the tender returns as it was not part of the clarifications submitted by the contractor.

I understand that without the full details it is difficult to provide a detailed response but would be grateful for any general comments.

Many thanks.

Firstly, I assume that for ‘Sports England compliance’ there is a specification published somewhere, which leads onto to my second assumption : from what you say, it seems that the Project Manager has NOT changed the Works Information in any way, so it is not a compensation event under clause 60.1 (1). But if the conditions were so different that, for instance, the GA had to be re-arranged, it might be.-

The next question is whether clause 60.1 (12) and 60.2 are still in the contract. If they are it MAY BE a compensation event. However, you would have to look at by how much the physical conditions found vary from those implied from the pre-contract site investigations contained within the Site Information. You would then have to apply the test in 60.1 (12) to this difference to see if the bar for a compensation event was met.