NEC ECC: Contractor's liability for delay due to change in specification (Project Manager's design)

It was suggested that a brick test be constructed to a similar project nearby however no date was given of when this should be complete and we assumed prior to commencement of the brickwork would suffice, 3 month prior to commencement of the brickwork we discovered an inconsistency between the brick specified and the drawings, we sent an EWN regarding this. The Project Manager therefore had to change the brick specification which took 8 months, this subsequently has delayed us in meeting our completion date for brickwork scope and was on the critical path, moving out all activities. There are no amendments to clause 80 in terms of risk re design, the Project Manager however has rejected our CEQ (we received a PMI changing the works information after 6 different brick panels were built and an alternative brick spec was chosen) based on the premise that if we had built a test panel 8 months prior to commencing brickwork when received the email to build a panel similar to another project this would have provided sufficient time for them to chose an alternative.

My opinion is , design is employer’s risk under clause 80, the Project Manager is the only one who has jurisdiction to change the works info, the time for the test panel is not clearly defined and therefore 63.8 would apply. The Project Manager is also in breach by not making a valid assessment as he has also not made any reference to clause 62.3 and 63.1 of the NEC conditions of contract and his response is merely a biased subjective interpretation.

It looks like the last action was your submitted CEQ (which I assume included an assessment of time) was not accepted by the PM and it looks like he has made a PM’s quotation assessment which you do not believe complies with the contract requirements.

Once the matter has got to the above stage, however, then the only further course of action is adjudication, as the compensation event would be implemented by the PM notifying his assessment.

From what you have said it looks like the PM’s assessment is a bit of a ‘damage limitation’ exercise, although I would advise reviewing the matter including when you added the activity of constructing a brick panel to your programme and whether this was accepted by the PM.

Request to submit a revised quote, however no reference to clause 62 and 63, a brick panel activity was never in the programme, just a date for commencement of the brickwork, WI states panel to be built in advance of brickwork, location TBC

As the PM has instructed you to submit a revised quotation, there is no reason why you cannot submit the same quotation, regardless of what the comments were in the response. Not referencing clauses 62 or 63 is irrelevant as it is the contract conditions that provide the requirements for a quotation assessment, which includes the effect on the programme under 62.2 and 63.3.

The problem however is the PM, whilst requesting a revised quote has not done so in terms of 62.4 and instead stated that if we built the brick test panel earlier on the project this would have highlighted the fact that the specified brick was not suitable for use. There would have then been time available to source and alternative brick without impact to your programme, therefore believes a zero cost impact. I do not deem this to be a Contractor’s risk as per clause 80

It appears that this comes down to the timing of constructing the brick panel. As the (Employer’s) WI states ‘panel to be built in advance of brickwork’ and this was not shown as a discrete activity on the proramme, then your obligation is to construct the panel ‘in advance of the brickwork’, which it seems that you have done.

If the Employer required the brick panel to be constructed at a certain point in time, then this should have been identified as a Key Date in contract data part 1, which you would have then been obliged to include in a submitted programme.