NEC3 ECSC: If a Contractor is aware of ambiguity between drawings within the Work Information during Tender stage but does not raise an EW until during the construction phase is he entitled to a CE?

NEC3 and NEC4 Contracts General
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During a EW risk reduction meeting a Contractor stated he was aware of ambiguities between drawings at tender stage but to be more competitive he choose not to price these items, but has now during the construction phase has raised an EW to have these items paid for, would he be entitled to a CE to cover these items.

NOTE: Under the tender Works Information the following was added " Any Ambiguities between different elements of the Works Information must be raised as a clarification during the tender stage"

Secondly under 10.1 The "contractor shall act as stated in the contract and in a spirit of mutual trust and co-operation.

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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:

  1. 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!)
  2. 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)
  3. 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.