NEC3 ECC: Employer Design Liability and timeliness of EW's

Scenario – The Works Information identified the use of a lightweight density concrete to construct a new arch saddle for an accommodation bridge. The concrete mix design specified in the Works Information failed to provide the minimum information relating to aggregate size as required by industry recognised specifications BS8500 or BS EN 206-1 (these specifications were identified in the WIP). No Contractor Design was identified in the Works Information.

The Contractor initially raised EW’s relating to the mix but these were focused on their supply chain not being able to provide a lightweight concrete and requesting the Project Manager to consider an alternative concrete mix design. The Project Manager rejected the use of an alternative mix. The initial EW’s did not identify the incompleteness in mix specification relating to the aggregate. Discussions regards incompleteness of the mix design were raised by the Contractor partway through the works and an EW raised to this effect. The mix specification was then clarified by the Project Manager and an appropriate supplier sourced but this came too late to prevent delay to the project (note once the incompleteness of the mix design EW was raised, all Parties responded in a timely manner to mitigate the delay). Ultimately however if the salient conversations relating specifically to aggregate would have happened sooner then the delay and associated costs would have been avoided.

Q - Could an element of negligence be attributable to the Contractor under a Contract z clause 60.1 ‘The following are compensation events to the extent they do not result from any error, omission, negligence or default of the Supplier or the Supplier’s Persons.’ I think the answer is quiet possibly but this would need to be considered alongside clause 61.5 and did the experienced contractor provide the ‘appropriate’ EW in a timely manner to avoid the event. Equally one can argue that it is the Employer (via his Designer) who is negligent for the initial omission.

Thoughts on liability between Parties would be useful in event of a PM Assessment. Contract ECC Option D

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If I was the PM on this contract, the first question I’d seek to answer would be " Did the Contractor give an early warning for the incomplete mix design as soon as he was aware of the matter ?". The Contractor can only be held liable if he did not notify an early warning as soon as he was aware. I don’t think the z clause has any effect if the Contractor was not aware of the issue.

With regard to a PM assessment, I would investigate whether the delay is solely attributable to the issue relating to incomplete mix design, or did the Contractor introduce a delay himself by pursuing the alternative mix? Any contributory Contractor delay can be taken into account in the PM assessment by reference to the following part clauses :
CL63.3-“A delay to the Completion Date is assessed as the length of time that, DUE TO THE COMPENSATION EVENT, planned Completion is later…”
CL63.7 " Assessments are based upon the assumptions that…any Defined Cost and time due to the event are reasonably incurred."