NEC3 Contract-Can you notify a change to works information compensation event(60.1(1) without a PMI(14.3)

The NECPM is replying to RFI’s and providing construction details not shown on the contract drawings(which are works information).
The Contractor considers this is a change to the works information.
Can we notify a compensation event under 60.1(1) even though the NECPM has not issued an instruction under CL14.3.


Couple of points here:

(1) If the Contractor gets on and constructs in accordance with the PM’s response to an RFI (which really should be an early warning notification or part of the programme submission) without an instruction then he does so at his own risk. He has no obligation to comply with the PM’s response until it is in a PMI (clause 20.1 and 27.3).

(2) If the PM fails to notify the PMI as a CE then the Contractor can notify it under the second bullet point of clause 61.3 and is not time bound to do so as the event has technically arisen as a result of the PM giving an instruction (same clause).

Hi, I’m dealing with a similar area of concern within a current contract. There is no formal section of the contract for “Project Managers Instruction”, but for example replies to RFIs (or technical queries as we have them on this contract) could constitute instructions issued via such clauses as 17.1 and 18.1. With the above, as in my example the NEC PM is issuing the responses, which clearly takes the form of an instruction (complying with relevant parts of 13x cls). So therefore is the contractor not obliged under 27.3 to obey the instruction, upon commuicating the response to the RFI / TQ?

Clauses 17.1 and 18.1 require the PM to give an instruction. If the instruction changes the WI (which seems highly likely in either case and is specifically stated in 18.1), that instruction is given under Clause 14.3. That then becomes a CE under Clause 60.1(1).