NEC ECC: Is a PM instruction to resolve an ambiguity always a compensation event?

The Contractor is proposing a form of construction that the PM considers is prohibited within the Works Information - prohibited in that the WI specifically stipulates a couple of options in terms of acceptable forms of construction (the Contractors proposal is not one of these but is a generally accepted form of construction in design standards referred to in the WI). Neither the PM or Contractor have specifically notified under Cl. 17.1, but the matter has been discussed at length and is the subject of communications between the two.

In essence both PM & Contractor consider the WI support their positions. If the PM were to issue an instruction specifically prohibiting the form of construction proposed by the Contractor, must he at the same time instruct a quotation? The Contractor would still be able to notify under Cl. 61.3 of his belief of a CE.

Does the fact that the PM has had to issue an instruction weaken their position that the WI is unambiguous?

The Contractor WI submitted at tender did not show the form of construction he is now proposing.

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From your comments, it is not clear if there is an ambiguity or inconsistency. You state that the WI stipulates a couple of options but it is not clear from your comments if the WI limits the form of construction to one of those stipulated or not.

If the WI is explicit in that only one of the forms stipulated can be used then there is no ambiguity or inconsistency even if other forms would comply with design standards.

If the WI is not explicit in terms of limiting the forms then, equally, there is no ambiguity or inconsistency provided that the proposed form complies with design standards.

You therefore need to review the WI to ascertain what has been stipulated. Does it expressly limit the choice or not.

If the WI does not expressly limit the form, an instruction to prohibit that proposed (assuming it does comply with standards) would be a change to the WI and therefore a CE.

If the WI is explicit in limiting the forms then an instruction to comply with the WI would not be a CE.

The WI indicates two forms of construction whilst the design standard includes five(including the options in the WI). The PM considers the specfic reference to the two leads to the exclusion of the other three options. The Contractor is arguing that his proposal, whilst one of the five in the design standard, also can be categorised as one of the two options within the WI - much symantics is involved!

From your reply, it implies :

  1. there is ambiguity between the ‘indicated’ in the WI and the five in the design standard and
  2. as the WI only ‘indicates’, that wording sounds a bit wooly to me.
    Consequently, without actually seeing the words in the contract, the Contractor might have its way !