Option A - Build Only project
The Client has full responsibility for design management, with the exception (of course) of as-built drawings.
However, the drawings being issued were essentially incomplete and needed a number of RFI’s to be raised to provide information sufficient to build to.
A revised drawing was not always forthcoming, meaning we had to build to a combination of designs/ (descriptive) RFI’s, only to then be issued with revised drawings [retrospectively]. This we believe is a failure on behalf of the client. This has happened multiple times in the project. This has lead to misinterpretation of information and elements of re-work due to multiple elements of changes to designs, without up-to-date designs.
A - Are we write in thinking this is grounds for an NCE?
B - Under what CE criteria is this relevant? (CL. 60.1 (3)? (18)? )
Ultimately the Client has not undertaken their role in design management and has relied upon the contractor to clash detect, modify drawings on site based upon descriptive wording, and not followed it up until late on in the project.
To be honest it sounds as though you are very late in the day deciding if all this globally is grounds for an NCE at this stage - it sounds like there should have been NUMEROUS compensation events to date.
There are a number of process that should/should have been followed along the way:
RFI - not an NEC term but a process that most projects would use and works perfectly well alongside the other defined processes within the contract. These should be used just where you need an answer to something and it is not too urgent - what colour do you want X, what position do you want Y etc.
EWN - where you are aware of something that could be an issue that could affect time/cost/quality then you should notify an early warning, which should prompt a meeting to discuss the matter and for the Project Manager to agree the action to be taken to move forward. This may or may not lead to an instruction, which in turn may or may not constitute a compensation event
Notification ambiguity or discrepancy - if there is an ambiguity between two contract documents in the Works Information e.g. drawing states X and the spec states Y, then you need to notify (in writing) to the PM of this fact. They then need to give an instruction to resolve that ambiguity, which will then be a compensation event. Under clause 63.8 the Contractor in this case will be assumed to have allowed for the cheaper easier solution where this is Client design. The difference between the two is what can be claimed in terms of cost AND time
Compensation Events - where ever there is a matter that constitutes a compensation event under clause 60.1 then you should notify EACH matter individually as a compensation event to see if the PM agrees it is one and then to request a quotation. Clause 20.1 states that you should provide the works in accordance with the Works Information. Any subsequent instructions changing the Works Information would therefore be a compensation event under 60.1(1). Certain compensation events you are time-barred if you have not notified within 8 weeks (see clause 61.3)
Programme - every period (normally 4 weekly or monthly) the Contractor should be submitting a revised programme showing where they are in terms of overall planned Completion. It should have been clear therefore period on period where you were heading in terms of how all this stuff was impacting your works. If ever you are showing planned Completion beyond Completion Date - that is either Contractor liability, or you need a compensation event in the system to equate to that delay. There is NO mechanism for an “EOT” claim or global disruption claim under NEC - any delay needs to be attributed to a specific individual event
Taking all this into account hopefully you can see what you should have done, and now what you need to do.
Further to this, I agree with your comments, however in this event/s the Client has failed to manage their design in accordance with the contract… they have not re-issued revised drawings prior to the works taking place, as they see a descriptive RFI response answers the question. However, in some cases, these responses have fundamentally changed the design, meaning to ‘red line’ the drawings (for as-built submissions on completion criteria) we are having to update the drawings first (a client responsibility), and then red line them. In theory, we should not have progressed them until a PMI was issued, but this has been done to mitigate further delay to the completion of works. Is there a CE clause that covers this? (the client essentially not managing the process, and left it to the contractor to do).
Your “theory” is correct that you should not have proceeded without a written PMI, and another example of working “in good faith” is not a good idea and actually doesn’t help the client that you are trying to help. Much better you both stop and make sure you are complying with the Works Information as 20.1 dictates - which will be the original Works Information or as amended with a written instruction by the PM.
No there is no global CE clause that covers you when you have not done what you should have done, even if it was for good intentions. Neither party have done what they should have done and two wrongs do not make a right.
All you can try to do is notify a CE under 60.1(1) which is a change to the Works Information and see if they agree that what you did was what they intended, and then be able to proceed with the quote and demonstrate programme impact as part of that quotation.
NEC does not put in place clauses that says "if you have not followed the correct processes then this is what happens next - it expects both Parties to follow the processes and can not legislate for all eventualities when either or both Parties fail to do so.
Sorry if this does not massively help but I think it is teh answer to your question.