NEC ECC: NEC3 constraints

We are the Employer on a scheme to improve an area in a town centre. Part of the works include resurfacing of a public car park & associated parking bays. The Contractor is looking to close the entire car park at once, for an extended period of time. The Works Information does not state that this cannot be done, similarly it does not state that it can. The Local Authority Parking Management section has come back to state that this would be unacceptable since the works could be completed in phases which would still permit some parking to serve the local businesses. The Contractor has submitted a Compensation Event under Cl 60.1(2). The Project Manager is of a mind that since the publicly available Local Authority website gives guidance on the maximum number of days and under what circumstances they will permit suspension of parking bays, that this CE can be rejected as access and use of part of the Site is not being denied, simply that it must be completed in phases. Who’s right?

Any constraints has to how the Contractor Provides the Works must be set out in the Works Information (by definition WI = … specifies and describes the works or
states any constraints on how the Contractor Provides the Works …).

The WI is in the information stated in Contract Data Part 1. Is the documentation setting out the “guidance” stated in CD1?

If such constraints were not in the original WI and are now being introduced then the matter is a CE under 60.1(1), a change to the WI …

The answer is neither are right but the matter is a CE provided that the constraint was not part of the WI.

I agree with what Dave has said.

This highlights a frequent issue whereby an Employer often assumes that a Contractor should do this or do that, although a Contractor will usually follow the path of least commercial resistance, especially if the Works Information doesn’t actually describe a specific requirement or way of doing something.

The publicly available information seems to be a bit of a red herring as the situation you have described does not seem to be a 60.1 (12) CE anyway, as Dave suggests a 60.1 (1) change to the WI is most likely.