NEC3 ECC: Time barring inconsistency and ambiguities

The Project Manager is claiming that the Contractor must be aware of all the inconsistency and ambiguities between or within contract documents at the day of signing the contract otherwise “time bar” will apply and he will lose the right to Compensation.


I don’t believe that is a correct interpretation of the contract.
The contract requirements in relation to this can be found in clause 17.1 and clause 61.3.
Clause 17.1 requires notification “as soon as either becomes aware of an ambiguity and inconsistency.” Notification follows awareness - If you are not aware of an issue you can’t be expected to notify it? It should also be noted that clause 17.1 puts equal responsibility on the Project Manager and the Contractor to notify ambiguities and inconsistencies. So if the Project Manager is aware of an issue he is duty bound to notify it and issue an instruction to resolve it.
Clause 61.3 contains a time bar if the Contractor doesn’t notify a compensation event “within eight weeks of becoming aware of the event.” Again awareness is required, and it is generally thought that " awareness" means awareness by Senior Managers/Directors.

The Project Manager is wrong here - assuming there is no Z clause amendments that change the standard contractual rules.

There is a strong onus on the Employer to produce in the first place good, thorough, unambiguous contract documents including Works Information. Just because they were given documents at tender stage does not mean the Contractor is liable for any such ambiguities.

I17.1 obligates either Party to let the other know when they become aware of a ambiguity or inconsistency between contract documents. The same clause then obligates the PM to give an instruction to resolve the ambiguity. If that instruction is a change to the Works Information then that will be a compensation event under 60.1(12). How that is assessed is covered in 63.8 - which is in favor of the Party that did not provide the ambiguity.

The only time-bar that exists within the contract is if a Contractor fails to notify a compensation event within 8 weeks of becoming aware unless it is one of the reasons that the PM is obliged to raise.

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