NEC ECC: Option A: Instruction 11.2(19)

We, the Contractor, have received a list of equipment from the Project Manager through an email (extract below). The list was not part of the Works Information and we understand this list to be a Change to the Works information (additional works).

“Please find attached the equipment list. Please also find attached Early Warning regarding the list.”

We need clarity if the above text constitutes an instruction under Clause 11.2(19) and if this should be instructed via a Compensation Event under Clause 60.1(1)?

Note: All parties were aware of the list and works required (although we believe this should be confirmed in the instruction to ensure its existence under the Contract).

Firstly, it is not clear, from the wording of the email, what the intention of the ‘equipment list’ is.

As the matter is considered to be an early warning by the Project Manager then hopefully you can discuss this at the risk reduction meeting.

There is no authority under 11.1 (19) for an instruction to be given which is provided at clause 14.3. An instruction from the PM may be valid, however, regardless of whether a clause is quoted, although you may wish to confirm authority under the contract.

Regardless of what the parties were aware of, the Works Information, as stated, determines the scope requirements for the project. If the email constitutes a change to the Works Information then this will need to be formally instructed and a compensation event notified accordingly, as you have stated to ‘ensure its existence under the contract’.