NEC ECC: Option B - a bit more information

Our contract is the NEC3 Option B contract with an agreed BoQ, high volume, medium value works. We receive a WO, plan and BoQ prepared by PM, we very rarely have any input on the BoQ until we receive from PM.

Due to the types of works carried out the BoQ’s are usually incorrect for the scope of works and also usually additional works are encountered.
We currently issue EWN via phone and PM issues an instruction verbally to carry on as we propose to do the additional works. We then submit a CVI to PM to which we receive neither an acceptance or rejection.
The works will be completed as requested and no issue will be raised with the practical works.

At this point, works have been carried out as instructed, AFP submitted and the PM will then contest our costs or quantities.

To minimise the costs to ourselves, would we be correct in stopping works, if no other works could be progressed onsite until the PM gives written instruction and charge for this non productive time?

If the above is incorrect, would be correct then in submitting an EWN, then CVI once verbal instruction has been given by PM and if no response then to submit a CE stating that no quotation has been instructed or requested by PM and the submit AFP

Firstly, under clause 13.1, all communications have to be “in a form which can be read copied and recorded” so :

  • you are not early warning at the moment. Sure, telephone them in, but follow up with a SEPARATE email as under clause 13.7, all notification have to be communicated separately. This protects you from reduced CE assessments.
  • likewise, sure, resolve them over the phone, but if you would be doing work not described as per the existing the Works Information (either extra or different) you are in breach of contract for doing what the PM has ‘verbally’ told you to do. So in your phone call make it very clear you will not do the work until the instruction comes in writing from him or her. If this does not come through, early warn and copy the Employer in pointing out the consequences i.e. standing at the Employer’s costs and time.

This might sound extreme, but I have been involved in enough end of project disputes where the PM has been saying “I’ll see you right at the end” and then not to leaving the poor Contractor in the door-dah.

Hi Jon,

Thanks for the reply.

What would you suggest would be reasonable time for the employer (PM) to issue the amended/additional works instructions in writing, as usually the change will occur and we would be standing immediately waiting for instruction from the PM, which is usually received verbally and then additional works carried out, hence the problems we are having now.

Thanks again Jon for your help.

Well on contracts where trust is operating and the PM consistently follows up on what is agreed, I would say within the day, as otherwise stuff starts to slip.

On your project, I would say the urgency acts to your advantage, so initially refuse to do it until the piece of paper / email is in your hands. As the PM starts to get into the discipline you can start to let it slip a little e.g. “so we will start doing that straight away, but expect the communication from you within the half hour, otherwise we stop work”. Then an hour etc.