A problem has occurred on an ECC Option C contract for a football stadium. The Works Information stated that all works are to be designed by the Contractor except the steelwork which will be designed by the Employer. A debate has ensued over the detailed fixing drawings for the steel. The Contractor believes that these should be prepared by the Employer. The Employer states that these are always designed by the Contractor. The team have reached a deadlock.
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Fairly straight forward - the Project Manager should issue an instruction to the Contractor to provide the detailed steel fixing. The Contractor obeys an instruction given by the Project Manager. If the Contractor believes this to be a change to the Works Information then they will notify that they believe that it is a compensation event (and stating why). The Project Manager then should once and for all decide if they agree or not. If they decide it is not a CE they respond accordingly that why they believe it to not be one. Ultimately the Contractor then only has adjudication as an option to overturn that decision, but in the meantime HAS to be proceeding with the works.
I agree with everything that Glenn says below.
On the question of whether the Contractor should already know that they are responsible for designing the steel work or not, clause 20.1 says “The Contractor Provides the Works in accordance with the Works Information” and clause 21.1 is even more explicit in that it says “The Contractor designs the parts of the works which the Works Information states he is to design”.
So for the Contractor to be responsible for designing the detailed fixing drawings for the steel, there is ideally an explicit statement in the original Works Informations information stating this. On the other hand, the statement could be something like "The Contractor is responsible for developing the all the existing design beyond that stated in the Employer’s Works Information except for the structural steelwork, but excluding the detailed fixing drawings.
If there are ambiguous statements, then the PM still, as Glenn says, needs to change the Works Information to clarify which would be a compensation event. The question is then how is it assessed. Clause 63.8 is the contra preferentum rule on steroids : namely that ANY ambiguity - as opposed to balance of probability in terms of meaning is assessed against the party who created that ambiguity.