NEC ECC: Impossible Requirement

We are currently near the end of the scope for an NEC3 ECC Contract under option A. We have found there is a requirement for coating some materials which we have been told is not possible with today’s available processes. Our specialist Subcontractor has informed us it has never been done before and they cannot achieve the drawing tolerances.

The Employer has said that it is possible as long as you undertake an R&D side project and develop the processes. This is a build to print contract and we have obviously not included hundred of thousands of pounds to develop processes. We are at am impasse with them. We have raised the relevant EWN’s but have been advised that no instruction will be forthcoming as they aren’t changing the Works Information. We will not be doing the R&D.

I am hoping for some confirmation from experts (yourselves) that I am in the right for this one before we get in to a substantial argument with the Employer.

Interesting question.

Am I right in thinking “build to print contract” means it is construct only contract with Employer’s design.

If so the Employer should have set out the specification for the works to be provided against (in compliance with) ie the Works Information. If there is no specification for this element of work (because it has not yet been developed) then the PM needs to give an instruction clarifying what is required. This instruction would be a change to the Works Information. If you have a build only contract then I do not believe the PM can give a valid instruction for you to now design part of the works ie develop the specification through R&D.

Yes it is the Employers design by which we build to the drawings. The process they require is commonly done but the size of the hole they require it applying to has never been done before so a new method needs to be developed to do it. They have a very much so “we have told you what we want, just go and get it done” attitude to this issue.