I am working on an NEC 3 ECC Target cost project as Main Contractor.
It has come to light after contract award that the boundaries of the site, as defined in the Site Information, are insufficient to cover the extents of the works.
Whilst the project has planning and access rights to a larger area, the drawings shown in the Site Information in the contract adopt a smaller footprint . This problem means that the main Contractor no longer has the protection/ guidelines of the Geotechnical Baseline Report (GBR) are outside this contract boundary to undertake the works. This is important as Compensation events against the GBR are only applicable within the site boundary (as define in the Site Information).
All parties accept that the extent of boundaries are incorrect in the Site Information.
Importantly the NEC in principles does not allow for Site Information to be changed after contract award.
Any advice on changing the contractual boundary or a potential path of resolution would be appreciated.
Well, firstly the Site is defined by a reference from the Contract Data part 1, not the Site Information so it is worthwhile going back to the original Contract Data and seeing what is referenced from there : it’s normally a plan view showing the ‘boundaries of the site’.
If that does not resolve the issue, then if everybody is in agreement - which it sounds as if they are - then a Supplementary Agreement between the Employer and Contractor could be signed which just modifies the Site to what people agree it should be.
Firstly the Site is defined at clause 11.2 and the ‘boundaries of the site’ is stated in Contract Data Part 1, although there is usually cross referencing between the two (wording of ‘above and below’ etc). Notwithstanding any planning and access rights, which should be the responsibility of the Employer, your main concern is whether the worksite is within the Working Areas.
You further mention the GBR Report, which is a useful document for defining any allocation of risk, although may not ultimately be the definitive baseline, depending on how such allocation of risk is actually worded and whether it sensibly dovetails with the assessment of such matters under clause 60.1 (12), 60.2 and 60.3.
Where you are working outside the confines of the GBR Report then any assessment of ‘physical conditions’ would revert back to the contract clauses, although if any principles have been established by the GBR report you could apply these, where appropriate, to determine such matters.
Thank you for your response Jon. Thanks for correcting my reference to site information is in fact Contract data part 1. The plan drawing in Contract Data part 1 does show the boundary of the site smaller than the required area for the works.
In the event that the PM is reluctant to sign a Supplementary Agreement due to the commercial implications and risk associated with the works, do you believe the Main Contractor can use 60.1(2) (Not providing access to the site) as an avenue for resolution? The GBR covers areas outside the current Site boundaries, which because of its location outside the boundary would be the Main Contractors risk given amended compensation event physical condition clauses.
Firstly - i’ve said that before - the PM has no power to sign the Supplementary Agreement as the contract is between the Employer and the Contractor, so legally it is irrelevant what the PM thinks. However, politics and not miffing him or her off.
I Don’t think clause 60.1 (2) applies as the area is not currently part of the Site. If you can’t do the work without access to that area then, depending on the circumstances, it becomes impossible to do the works so the contract would ultimately have to be terminated unless something changes to make it possible … which is a bit drastic !