the clients health and safety representative is concerned about the deep excavation to the lighting columns and want to see the design of the earthwork support.
The Contractor think that it was a CE under the Clause 61.3 as it was not in the Scope and it is impeding the work.
I would say no, assuming the H&S representative is correct and the design for earthwork stability is inadequate. Cl.27.4 requires the Contractor to act in accordance with the H&S requirements given in the Works Information, have they done this?
The answer to this is probably not fully NEC related, but more to do with legal compliance with the Health & Safety at Work Act 1974 & CDM Regulations 2015, both of which are primary UK law. CDM requires the “Designer” (i.e. the Contractor in this instance) to design out risks to “as low as reasonably practicable”, installing earthwork support (shoring, sheet piles, timber supports etc) meets the CDM 2015 legal requirements, a deep excavation without does not. It sounds like their design currently does not comply with the applicable law (Cl.21.2 gives the PM the opportunity to reject the design if it does not meet the applicable law). Ask them to demonstrate how their current design complies with the 2015 CDM regulations? If they can’t then reject an CE notification referencing Cl.21.2. Note the final part of this clause states; “the Contractor does not proceed with the relevant works until the Project Manager has accepted his design”.
p.s If the question is what provision is their in the contract for the client rep to view the earthwork design, then ask the PM to send the Contractor a General Communication requesting it.
Under CDM the Client is obliged to “make sure the principal designer and principal contractor carry out their duties”.
The Contractor is required to “plan, manage and monitor all work carried out by themselves and their workers, taking into account the risks to anyone who might be affected by it (including members of the public) and the measures needed to protect them”
Considering the above, the client is entitled to see how the principle contractor has addressed H&S in designing the temporary works for this activity.
The contractor is wasting everyones time in seeking a CE for not being able to demonstrate they have complied with the construction regs.