NEC3 guidance would imply that any relevant documentation describing the works and/or constraints must be identified as Works Information and listed in the Contract Data, and that the various sections and supplementary documents references should be listed. Whereas Contract Law would imply, any supplementary document referenced would amount to reasonable notice and therefore ‘incorporated by reference’. If a specification forming part of the Contract Works Information refers to another document which is not readily available, are you obliged to comply with that document if its not listed in the Contract Data / within any document schedules provided?
If Documents are incorporated by reference, where is the line drawn? I.e. a supplementary document may refer to several more documents, which you may be expected to comply with?
It may sound harsh, but I would suggest that before entering a contract, one should be satisfied with the documents provided/referred to in the Works Information (WI); after all the Contractor is obliged to provide the works in accordance with the WI. If documents referenced in the WI are not available, shouldn’t there be a relevant query at tender stage?
I understand that the above is easier said than done, and sometimes the WI are voluminous, often containing items irrelevant to the works (WI copied and pasted from other tenders); however, I don’t see any easy way out of such a situation. The only recourse would be to notify an ambiguity or inconsistency (cl. 17.1) which could result in the PM changing the WI in order to resolve it, if there is any merit of course.
Hi Peter, thank you for the response, it is much appreciated.
I completely agree with the sentiment; the Works Information should have been thoroughly reviewed prior to executing the Contract, unfortunately the Sub-Contractor did not do this, and consequently some information has been overlooked.
I researched this further after posting and from the publications I have read, it would suggest that any documentation incorporated by reference must be fairly and reasonably brought to the attention of the party; that the incorporation is grounded on the basis that such material is so well-known to both parties that a mere reference to it is therefore deemed adequate. Its also suggested that documents should not be incorporated by reference if the second document, then discloses further pertinent information, by reference to a third document.