All very well for Works Information to state that “ambiguities between Works Info documents” should be raised, but they might not have spotted them - what then? If it is so obvious that the Contractor should spot them, then how come the Employer created these ambiguities in the first place? In the ECC contract I see clause 17.1 and 63.8 being amended to make it very clear that ambiguities are Contractor risk, but I do not see from teh words you have stated that you have clearly transferred that risk to the Contractor in this instance.
First thing to say is a very risky strategy on the Contractors part. I would always recommend raising at tender stage so all tenderers know what they are pricing. It wont do anything for relationships going forward, but then I don’t think clause 10.1 will particularly help you contractually in this instance. If there is a difference in Works Information documents that requires an instruction to clarify, that will be a compensation event (60.1(1)). 63.8 states that this should be assessed in favor of the Party that did not create the ambiguity.
So to summarize:
- Contractor point out ambiguities at tender stage so everyone knows where they stand (and for goodness sake don’t admit it if that is what you have done just to gloat!)
- Employer spend time producing documents that do not have ambiguities within them (and expect to discharge risk of any to Contractor, which I don’t think you have done here with your wording)
- If this ambiguity needs an instruction to resolve changing part of the Works Information then this will be a compensation event, and will be assessed in accordance with 63.8.