NEC ECC: Contractor proposed alternative material

Contractor uses alternative product which is cheaper. PM accepts revised activity schedule however when it product arrives on site PM says it needs to meet original requirements, Is the Contractor allowed CE?

The Works Information prepared by the Employer specifies a lift with a required performance but the Contractor can buy an alternative lift at much lower cost. He had therefore included reference to this alternative in his revised Activity Schedule, which was accepted by the Project Manager. The Project Manager notices the arrival to Site of the alternative lift and instructs the Contractor to comply with the requirements of the contract. The Contractor notifies a compensation event as he will now incur significant additional cost and delay.

Is the contractor entitled to CE?

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Activity Schedule is not Works Information. You should not have changed wording on activity schedule and when accepted think you have acceptance to change the material. You should have notified separately this proposal, and then had a specific instruction form the PM to confirm that they are agreeing to change Works Information in line with your proposal.

You are therefore on very shaky ground here - however good your intentions were. Problem is you have to comply with WI, and you have no instruction to change the Works Information. Only if you had this instruction and now they are changing their mind (again) would it now be a CE.

Talk to them is my only advise here…

I endorse Glenn’s comments. You could talk to them under clause 44.

i.e. we accept that it is not in accordance with the Works Information and therefore a Defect. Would you accept a reduction in the Prices ? Negotiate and then make a formal offer as per clause 44.