NEC3 ECC Option A: Ambiguity - We are trying to define whether the Works Information provided and/or with reference to the Bid Submission clarifies whether there has been an inconsistency and/or ambiguity in accordance with Clause 63.8

NEC3 and NEC4 Contracts Compensation Events
1

The Employer’s Works Information provides area tables (m2) for the differing room requirements, however there is a generic comment at the bottom of these tables that the ‘area per room requirement’ should be read in conjunction with relevant standards and the areas of the relevant standards will prevail.

The relevant standards were not provided with the Tender, however could be searched online.

Within the Bid submission (that has now been entered into Contact) is a qualification that the areas used are those provided within the tender document.

1 - Does the Works Information alone constitute ambiguity in accordance with Clause 63.8 ?
2 - if answered ‘yes’ above should this be a PM responsibility to notify the discrepancy and issue the relevant Compensation Event.?

Lastly, a Z-Clause has been introduced under ‘Notifying Compensation Events’ and listed under the excluded time barred events is: Relevant Standards

1 Like
2

It is common for standards to be referenced in a scope document, such as Works Information, which could lead to ambiguity if it is not clear how the standard actually applies to the works. For example it may relate to more than one possible option, so in this instance you would price the cheapest one and any change would be a CE.

As the Works Information states that the ‘relevant standards will prevail’ then it is suggesting that these areas take priority over what is stated in the WI. An ‘ambiguity’ could arise where what is actually required is a mix of both what is in the standards and what is in the WI. This is made a little more complicated by the inclusion of your bid qualification as part of the contract documentation.

There is no standard ‘order of priority’ within NEC contracts, although this is frequently added, usually within a ‘Form of Agreement’ document, which should be the first thing to consider.

Jon Broome wrote an excellent article on this subject which can be found here https://www.jonbroome.com/getattachment/44704d3b-547d-4bd9-a278-b40389ffcc58/Is-there-a-hierarchy-of-documents-under-the-ECC.aspx

It looks like you are responsible for design, so I would suggest clarifying this requirement at an early stage, by notifying the matter under clause 17 and considering whether any consequent PM instruction constitutes a CE.