NEC ECC: Material added by the Contractor to ease construction not in the Works Information

The Contractor is to undertake the installation of sheet piled wall with a silent piler. They have taken advice from the supplier of the rig that because there are some gravels in the GI report (Site Info), they should use an interlock sealant within the clutches of the piles. They have now realised that the silent piler (different issue as GI was provided by the Employer) cannot be used and have indicated that in order to use a vibrating hammer , they need to remove the sealant.

Whilst I have instructed the removal of the sealant and subsequently instructed them to stop the removal, As PM I am arguing that as this was not specified in the WI and no Early Warning was given, they did not give and EW of a change to the WI (i,e, the addition of the sealant) and furthermore this is not a material used (or necessary) to provide the works and should therefore be a disallowed cost.

In other words the neither client nor designer was aware of the use of the sealant and did not have the opportunity to decide whether this was desirable and change the WI to suit at tender stage or through an instruction to use the sealant.

Do you think this is correct?

From what you have said I am assuming that the Contractor has no design responsibility and that you are also under one of the ‘cost reimbursable’ options, C (with target), D (with target) or E.

The application of an interlocking, or clutch, sealant is frequently used as a water retention measure, to either minimise water from entering the excavation or for ground stabilisation. If this wasn’t specified then it is unclear why the Contractor elected to use it.

If you instructed the removal of the sealant then it wouldn’t be a compensation event as it isn’t one of the compensation events stated in the contract (last bullet point of clause 61.4).

This matter would also be a Disallowed Cost as it is ‘Plant or Material not used to Provide the Works’, noting that ‘Provide the Works’ is in accordance with the Scope / Works Information, which doesn’t specify the sealant.

It sounds like the Contractor needs to approach the contract quite differently and I would suggest giving an early warning by notifying this matter as one of the appropriate bullet points to also discuss the operation of the contract procedures. If one party is operating the contract as intended and the other one isn’t, it nearly always creates problems for both.