NEC3 ECC: PMI to Proceed With The Works

NEC Option A – Design and Build Basis

The Employers PM has raised a PMI under Clause 61.1 to make a fundamental design change to the WI, with the wording of “proceed with the works”

The instruction included some of the design information about the instructed works but also requested that we complete the design in accordance with the applicable British Standard.

Does this instruction supersede the CL 21.2 Design Acceptance? As he is now suggesting we should have proceeded with completing the works without getting design acceptance as required by the contract?

The PM is suggesting that we are not entitled to the delay caused, even though there was a protracted design period with numerous RFI’s and TQ’s raised and an eventual design acceptance period. He is suggesting we should have proceeded with the works at risk and ignore the design acceptance protocols in order to mitigate delays?

I assume that you mean a compensation event under 61.1.

The CE would not alter the requirements of clause 21 unless expressly stated to do so or the CE itself contained a revision to the requirements of the Works Information regarding design acceptance.

What isn’t clear from your comments is whether the design could have been submitted for acceptance in parts as allowed for by clause 21.3.

From your comments I’m assuming that the change effected planned Completion (and hence the Completion Date). I’m also assuming that the PM did not discuss how the CE could be best dealted with and neither the Contractor or the PM notified of an early warning at the time to discuss potential ways of how the effect could be avoided or reduced.

The situation appears to be one where the Contractor and PM are not proactively talking to each other.

The PM is wrong to believe that you should have worked at risk to mitigate an Employer’s delay, the Contract provides that the Completion Date should be change due to such matters. However a discussion could have taken place to agree how best to proceed and where the risk of doing so should sit eg the PM could have included a PM assumption to base the quotation on.

One thing to be mindful of is that neither RFIs nor TQs are recognised by the contract and the PM may take a view, in hindsight, that early warnings should have been issued