NEC3 ECC: Deemed acceptance of inconsistencies

The Project Manager claims that a Contractor must be aware of the inconsistency between or within contract documents at contract date, otherwise he loses all the rights to Compensation after 8 weeks “time bar”. Is this allowed?

1 Like

No. You need to ask the Project Manager to show you where in the contract it says this. Unless this is a Z clause amendment (which I doubt) then this is not the case. The contract states that you have to notify a compensation event within 8 weeks of becoming aware of the event. If you were not aware that the inconsistency existed then you had nothing to notify at that point.

Under 17.1 either Party are obliged to notify an ambiguity or inconsistency between contract documents. Project Manager has to give an instruction to resolve the ambiguity, which if the ambiguity exists between two Employer elements of the contract will be a compensation event… Clause 63.8 then states that such an ambiguity will be assessed in favour of the Party which did not create the ambiguity.

This form of contract holds the Employer more to account than other forms to produce decent Works Information. You do need to check the contract amendments to make sure that there is no Z clause that changes any of the above. I have seen a Z clause that said any ambiguities in contract documents are the Contractor risk as they had ample time at tender to spot them!!!