NEC3 ECC Option C: Ambiguity in Works Information?

Series 1200 Works information calls for road signs past chainage ch1000. Series 1500 says no technology is to be installed past ch1000, Contractor considers road signs to be part of the technology scope.

PMI then changes S1200 works information to delete road signs past ch1000. Employer believes there is a reduction in the forecast defined cost. Contractor states there is no reduction in forecast defined cost because they had no intention of installing road signs past ch1000 as the S1500 works information stated there would be no technology to be installed past ch1000. Contractor states in the assessment of the CE changing S1200 works information that there is/was an ambiguity in the works information.

12 months have passed between original (tender) Works Information and subsequent PMI deleting the signs. No notification of ambiguity sent by either party, Contractors Target Price included for providing signs past ch1000 and all monthly forecasts of defined cost have included for providing the signs past ch1000.

Is the Employer entitled to a negative CE (reducing the Target Price) for the saving in defined cost of road signs or is the Contractor correct in that an ambiguity existed and therefore (contra preferentum) there is no reduction in the target price.

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What would have been helpful here would have been to “resolve” the ambiguity earlier. First question to resolve would be is or isn’t the road signs to be part of the technology scope. You say the Contractor “considers” them part of that scope but is that correct or not. If it is part of that scope the ambiguity should have been raised earlier and resolved accordingly both practically and in terms of liability/financially.

If this ambiguity exists, then under 63.8 when resolving the ambiguity the Party which did not create the ambiguity is deemed to have allowed the one more favorable to themselves. Therefore that would be no signs, that is what the Employer wants so there is no CE (for a saving). However, if the signs are not part of the technology scope then the Works Info states signs, and if the Employer no longer wants signs then that would be a (negative) compensation event.

If I were the Project Manager I would have first had a quiet word with the Road Safety Auditor to establish whether removal of signs would be the correct thing to do. If an instruction has been given to remove them then they could simply end up back in the contract for safety reasons later.