NEC ECC: Is this within the contract?

A client refereed to certain utility works as ‘provisional’ in an NEC3 option A contract.

The works did not form part of the price & activity schedule, are not mentioned directly within the works information although they do form part of the M&E specification which is referenced within the WI appendices.

The works were not appropriately ‘instructed’ by the client but the Contractor did initially progress with the works.

The utility connection was initially deemed to be not required when the contractor held discussions with the utility provider, but upon further review this was deemed inaccurate and was a new connection was required.

A CE was raised and the costs accepted however the impact of time is largely being rejected by the client. There are consequential changes that would have been made if the initial connection had gone ahead as the plant room transpired to not be big enough.

The client has muddied the water through using terminology and approaching the contract in a manner that is not in line with NEC but in principle would you consider that the works did not form part of the contract and as such the contractor should be entitled to the entirety of the time impact?

Is there a separate competent contractor should have known better argument that would trump the issue of its inclusion within the scope?

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It is difficult to comment without knowing the exact wording of the contract.

If it is clear in the Works Information (including those documents referenced within it) that the work was provisional and subject to instruction (which would be a CE) then yes the Contractor should be entitled to a compensation event to assess the effect of the change on both the Prices and the Completion Date.

If the WI was clear that the work was subject to an instruction, then the Contractor should have requested confirmation before he did anything in connection with it.

Regarding “competent contractor” his obligation is to Provide the Works in accordance with the Works Information. He is entitled to assume that a competent Employer has provided the right WI.

This is an example of the fundamental importance of clear Works Information particularly on an Option A.