NEC3 Option A - WI Ambiguity

Good Afternoon,

Currently working on a design and build project with the above contract.

The following is within the WI (preamble in the architectural specification):

“Where any discrepancy becomes apparent within the Works Information documentation, the more onerous will be applied.”

There is no Z clause within the WI that deletes clause 63.8 - a compensation event to resolve an ambiguity.

Is this an ambiguity whereby the first item refers to a more onerous solution and the second text is more in favour of the party that did not prepare the Works Information (less onerous)?

The fact that they haven’t deleted a core clause does this in effect nullify the more onerous statement?

Kind Regards,

Shaun

As a starting point, the statement is ambiguous itself; more onerous for the Contractor or the Employer? Although we can assume, it is nonetheless ambiguous.

Next, the above statement does not relieve the PM or the Contractor of the responsibility to notify each other of the inconsistency (cl. 17.1); further the PM should give an instruction to resolve it (even if the instruction aligns with the above statement), which will possibly result in a change to the WI, leading to a CE under cl. 60.1 (1).

In my view, the key point here is that cl. 63.8 will apply to the assessment of the CE, being the change in the WI and not the inconsistency itself; i.e. the Contractor (who is not responsible for the change) will be compensated for the effects of the change, especially if that change results in more onerous conditions for the Contractor.

Based on the above, I don’t see any practical issue.