PM on an NEC3 ECC Option A - Design and Build contract. The PM previously accepted a design submitted by the Contractor for a section of works as required under CL21.2. This design included for granite materials to be used. The Contractor has run out of the materials and has now submitted a further design for the PM to accept under Cl 21.2 replacing the granite with concrete in the remaining section. It is possible that the concrete substitute still meets the requirements of the WI but aesthetically would look odd. Does the PM have to re-consider this design under Cl21.2 even if a design has previously been accepted?
If the Contractor uses concrete instead of granite this would be a Defect under clause 11.2(5) "part of the works designed by the Contractor which is not in accordance with … the Contractor’s design which the Project Manager has accepted. The Supervisor would have the right to notify the Contractor of this and ultimately if the Contractor does not correct it the Project Manager can assess the cost of other people correcting it and the Contractor pays.
There is nothing to stop the Contractor for submitting a revised design however it’s unlikely that the Project Manager would accept it and would instead refer the Contractor back to the original accepted design.
You don’t mention why the Contractor has decided to use concrete instead of granite? Cost saving or long lead time causing delay I’d suspect, both of which are not acceptable reasons. However if it has become impossible to source the granite then you might be in a clause 18.1 impossible requirement situation, in which case the Project Manager should instruct changes to the Works Information to allow an alternative design.
So the grounds for not accepting the revised specification would be that it doesn’t comply with the Works Information. Albeit that it is the Contractor himself that has provided the Works Information?
That’s correct Robert, what would be the point in the PM reviewing the design for compliance with the Works Information and accepting it if the Contractor could later do whatever they wanted!