NEC3 ECC: Ambiguity within Works Information clarified by Tender Query response

A TQ has been raised and the response given clarifies that the most onerous case is required, yet further ambiguities existed within the WI on the same issue were not identified within the TQ or response. Must further instruction be given to address the other ambiguities the TQ has not mentioned?

If instruction is thought necessary do we then revert to evaluating the changes using NEC cl 63.8, being the least onerous position for the Contractor, despite the TQ directive?

In summary is the TQ of higher status and should be considered definitive on further discovery of ambiguity with the same issue.

For simplicity consider issue relates to either demolishing a shed or to leave in place.

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If during the tender process there was a TQ questioning do you want the shed demolished or left that was resolved stating “please demolish” then assuming TQ responses are part of the signed contract I think it is clear you should have included to demolish the shed within your price. The TQ should be part of the Works Information(equal) rather than taking a “higher status”.

This I would say is the principle - but as ever the devil will be in the detail, as to how this was clarified and then bound into the contract. In the wording of the example given it would appear pretty clear that the shed is intended to be demolished - and that is what the Contractor should have priced and hence will not be a CE.

Glenn, I’m interested in your response because we were paid a CE in similar circumstances on a project lately where there was conflicting Works Information and a TQ response regarding the demolition/retention of a security building.
We argued that the Client should have re-issued an amended version of the relevant Works Info along with his TQ response and removed the ambiguity. He didn’t take this course of action so the contractual position was that ambiguity remained, and the TQ response just added to the volume of ambiguous Works Info & didn’t clarify anything, regardless of whether the TQs were signed into the contract or not. Under Clause 63.8 the Contractor was still entitled to price the position most favourable to him.
You stated (and I agree) that a TQ response is an “equal” part of the Works Information and doesn’t over-ride other Works Info, so, other than to avoid a conflict with a Client who didn’t realise his contractual position, why should we have priced the demolition?

Cecil - I see the answer to an answered TQ a bit like a Project Managers instruction that in effect “supersedes” the Works Information once the project is underway. If you have asked for clarification at tender as to whether they require a “Rolls Royce” or a “Mini” and the TQ states a Rolls Royce - I think that is what you should have allowed for within your programme/price.