NEC Option A - An ambiguity between Works Information and Activity Schedule (contract documents)

The handrails have been included on your Activity Schedule as there was anticipation they are required to satisfy Building Control. However, due to the subsequent recommendation from Building Control, the handrails were not a requirement to these Gabion walls and have not been installed.
In the Employers’ or Contractor’s works information, the handrails are not shown on any of the drawings submitted by the Contractor.
Contractors’ response:

  1. “When our pre-construction team prepared the estimate for the project, they made inclusion for handrails to the Gabion walls despite the absence of them on any drawn information”.
  2. “Had they been confirmed as being required by Building Control, we would not have been seeking compensation event from the client as this would have been our risk and hence the inclusion of the sum of money for them in the initial estimate”.
    Please can the panel advise what I need to do?
    Also, with regards to contractor’s response 2, if the handrails were required by the building control, then they will be no need to raise a compensation event as this was already included in the contractor’s fixed price. Please, note that the Contractor has about 5% construction risk allowed against the building cost.
    Please can the panel advise what I need to do? Your help will be much appreciated.

For the Employer to be entitled to a CE to reduce the Prices for this the Works Information would need to have changed and arguably there should be a PMI for this. If the Employers WI does not specify handrails and only requires compliance with certain standards including building control then how the Contractor achieves this is at their discretion and as the handrails are no longer needed the Price in the Activity Schedule for them should be distributed across the remaining activities. If you struggle to convince them of this try explaining that had the requirement turned out to be more onerous there wouldn’t have been a CE for the more onerous solution and so the same is true for the less onerous one.