NEC3 ECC: Where there is ambiguity in the contract drawings

NEC3 and NEC4 Contracts Compensation Events
1

Type of Contract: Option C

We have received via a PMI the issue for construction drawings. We are subsequently required to carry out an add and omit exercise with the tender drawings. Upon review of the tender drawings certain elements which are included on one drawing are excluded on another and therefore could have been missed during the tendering phase, they are now subsequently included on both in the IFC drawings.

  1. Can these items be claimed for or should they have been taken account of during tender phase
  2. for any items omitted e.g. brickwork replaced by grating, can the fee % be claimed for the omitted work as well as the fee % for the added work ?
1 Like
2

There are two separate issues here:

  1. ambiguity between Employer Works Information provided during tender stage. Once you become aware of such an ambiguity or inconsistency you let the Project Manager know, and the PM should then give an instruction to change (the bit of) the Works Information. This will then be assessed in accordance with 63.8 which is in favor of the Party that did not create the ambiguity (in this case the Contractor). The fact that these ambiguities were missed by the Contractor during tender stage does not automatically make them their problem/liability.

  2. changes to the Works Information will be assessed as a compensation event. Any omissions will be assessed using the same rules as additional items. This means that you assess using the schedule of cost components the cost of not doing that work, and yes to have to include fee (i am afraid) in that saving you are giving back to the Employer.

3

am possibly being biased here but based on the premise that the Project Manager has effectively already done so in the form of a PMI with revised drawings does this not over ride this requirement with 63.8 applying to any previous ambiguities now resolved in the contract drawings and subsequently should form part of the contractors quotation in relation to the revised drawings which is already deemed a valid ce by both parties

4

Yes - the newly instructed drawings supersede the original Works Information - I was just pointing out how they could/should have been dealt with originally to start with. The issue you will have now is that if there was a discrepancy with the original WI that something could have been either X or Y, and now they have instructed anyway Z - you need to ascertain what the CE should be - i.e. the difference between “Z and X” or “Z and Y” (if that makes sense) which is what 63.8 tries to address.