NEC3 ECC: Changes to the Works Information / relationship with Completion - Option C

I am on a project which is nearing completion. Towards the end of the scheme a PMI was issued for some additional works along with a request for a quotation. Prior to the issue of the PMI, during discussions, the Contractor had stated that if the works were instructed asap, they could be undertaken concurrent with other works so as not to compromise the Completion Date as they still had the additional resource on site. We have since received a revised programme for acceptance, but as yet no quotation with the additional works tagged onto the end of the scheme pushing the Completion Date out by a month. The revised programme has yet to be accepted, no quotation for a compensation-event has been received, can we ‘de-instruct’ the additional works under Cl 62.3 or other clause as the quotation will likely be too expensive / unrealistic as the duration and associated costs will be excessive. Also, the proposed revised Completion Date is beyond our client’s agreed handover to a third party

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It sounds like you instructed the additional works under clause 61.1 - which means the Contractor should have put that decision into effect. If you no longer want these extra works then you should give a new instruction under clause 61.1 to change the Works Information (back to what it was). You then have to assess two CE’s - one the cost it would have been to do the extra works and then a second one to omit what the cost will now be not to do the extra works. You would assume the add/omit to be the same, less any costs/time that have been incurred to start doing the works. If you want them to do the work and think there quote is excessive (i.e. not in accordance with the contract rather than valid but beyond your budget) then you can make your own assessment of the quote under 64.1.

Hindsight is a wonderful thing isn’t it - but you would have been better instructing a quote under 61.2 for a proposed instruction. IF we instruct this extra work what will it additionally cost. You could have then decided if you wish to proceed or not.

Firstly, the Contractor’s key obligation in clause 20.1 is “to Provide the Works in accordance with the Works Information”. As you have now changed the Works Information through the PMI, they have the obligation to do the revised additional work scope.

Now let’s look at the last paragraph of clause 63.1. Depending on your edition of the 3rd edition i.e. pre or post April 2013 version, there are slightly different rules for what divides a forecast from historical records. Either way, as you have instructed the change, it sounds as if the quotation should be done on a forecast.

Under clause 63.7, this forecast quotation is based “upon the assumptions that the Contractor reacts competently and promptly to the compensation event, … and that the Accepted Programme can be changed”. From your discussions, it appears that the Contractor could do the work concurrently and the impression I get is that this would have been the most economical way of doing it. I.e. if they had reacted competently and promptly. They have not, so whatever figure is arrived at can be assessed on the basis that they did.

The last thread of this is that the Contractor submitting a quotation is out of time i.e. beyond the 3 weeks allowed in clause 62.3. You do not explicitly state this, but I am assuming it to be true. Therefore under clause 64.1, first bullet, the Project Manager has to assess the compensation event. While they have to do it using the same criteria as the Contractor would under clause 63, it is unlikely to be as generous assessment as the Contractor would make themselves.