NEC ECC: Contradiction within Works Information

Appendix 0/3 refers to the List of Contract Specific Numbered Appendices Referred to in the Specification for Highway Works and to be Included in the Contract. If in the list of specifications some are marked as “not used” but have still been included within the specification and details shown on drawings would this be a CE if these items were not priced at tender stage?

Just wondered if this would be a CE if these works items were not priced as it states not used? or as NEC documents have no precedence should the items be included as they are included in the Works Information? or does ambiguity / inconsistency come in play even at tender stage and the Employer should be notified?

It looks like there are some inconsistencies between the documents forming the Works Information. If you are at tender stage then it would be sensible to notify a Tender Query to highlight this issue. If it is post contract then you would notify the PM under clause 17.1.

Whether the matter would be considered as a CE would likely depend on how the documents read together using commercial common sense and also what Main Option is used (BoQ or Activity Schedule), as to who takes the risk for the ‘measure’.

If the intention is clear, despite an apparent contradiction within a particular document, then that intention would almost certainly become the requirement. The insertion of the words ‘not used’ could have been a genuine mistake, which went unchecked, which might be obvious if you read the documents together.

Many thanks for your reply and you thoughts have confirmed the answer for me, we need to price in the works! We are at tender stage and Contract is Option C Activity Schedule so risk is ours especially as pain / gain is 100% contractor risk above target cost.

From your question it appears there is an ambiguity within the contract documents. Labelling the specific section(s) of the Specification as “Not Used” must mean exactly that. If the section(s) is included in the contract documents then it is superfluous simply because it is “Not Used”. For example, if the testing specification is stated as “Not Used” but was included then no testing is required. It would however be prudent to get confirmation. If the testing specification was required then this would be a change to the Works Information (assuming the Specification is part of the WI which obviously it should be).

The issue is where the work requires that section of the Specification to specify how the work is to be provided; for example the earthworks specification being described as “Not Used”. It is not clear from your question if you could actually build the works without reference to the “Not Used” sections. If you cannot then the particulars need to be looked at.

In the ideal world any ambiguities/inconsistencies should be raised and addressed at tender stage however this is not always possible due to the timeframe and/or the ambiguity not being apparent at that time.

Thanks for your comments,
The specification is for Appendix 1/10 contractors design for certain elements of works and is listed in Appendix 0/3 as being “not used” however specification 1/10 is included in the tender documents and the detail of the work is shown on drawings.
If we didn’t price these elements of works for the tender do you think we would have a CE for change to the works information? or should we have priced the works as they are included in the works information documents?

if you are at tender stage raise a Tender Query to clarify what is required.
Whether you priced the work or not is not a matter for a CE. A CE can only be for one of the matters set out in the contract.