When is an ambiguity deemed to be ambiguous 17.1

I think the 17.1 clause is possibly the simplest clause to resolve if both parties agree what (or more specifically when) an ambiguity is ambiguous.

My case in point. The main contract (works information) states that the contractor will design those items listed in the ‘contractor design portion at appendix 18’. The works information also states that the contractor is to use a specialist flue company to ‘design’ manufacture and install the flue. The requirement to design the flue is not on the list of CDP items at appendix 18, and is a statement in the sub-consultants Spec. Agreed this is potentially an inconsistency and the contract explains how to deal with this.

The issue I have is the contractor has already engaged the services of the specialist flue designer and submitted a design for approval, and is only now saying this in an inconsistency and ambiguity.
My gut is saying at the time of tender and awarding the subcontract to the flue specialist the contractor did not see this as an ambiguity, and therefore it was not ambiguous or they would have raise an EW.

Now the QS’s have got hold of it, they can see an extra claim for the ‘design’.

Can this be right?

I get the concept WI, states wooden and gold door handles, PM confirms gold and contractor is compensated for the difference in price between the less and more expensive. But if the WI states wooden and gold, and the contractor installs gold (and that was what the Employer wanted) without raising an ambiguity, can they really retrospectively claim an ambiguity?

Really welcome any advise you could give

Clause 17.1 imposes an obligation to notify an ambiguity or inconsistency “as soon as either becomes aware”, when awareness should have occurred is irrelevant, it is when you are actually aware that matters. So if the Contractor wasn’t aware of the ambiguity or inconsistency when tendering and only became aware of it much later on it is acceptable to seek clarification as to whether they are to design the flue or not. If in one place the Works Information states design items listed in appendix 18 (which excludes flue design) and in another place it states design the flue then the Works Information is inconsistent and the PM should resolve this by issuing an instruction to change appendix 18 to include design. The fact that the Contractor has appointed a flue designer and submitted the design is irrelevant, how do they or you know that they should have done this? The PM’s instruction would then trigger a CE under clause 60.1(1) and clause 63.8 explains how it is assessed - in the Contractor’s favour i.e. Works Information did not impose an obligation to design the flue so the cost and time associated with completing the design is included in the Contractor’s assessment. What the Contractor allowed for in his tender is also irrelevant as the contract is an entire agreement (clause 12.4) and in any case the Contractor “Provides the Works in accordance with the Works Information” (clause 20.1) and not in accordance with the Activity Schedule / Bill of Quantities etc.

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Neil, thanks for your advise. I see this slightly different, and possibly because I may not have explained myself. The requirement for the flue design is in the Works information, as a clear and unambiguous statement. 'The contractor is to employ a specialist flue company to design, manufacture and install …, So the contractor did know the requirement.
The potential issue is that it is not listed in the Appendix 18 (to be clear it is not excluded either).
I believe if the contractor reads all the documents in the Works Information, there is no doubt of the requirement to employ the specialist. Agree with you on how to resolve the ambiguity, just I don’t feel comfortable calling this an ambiguity.
Thanks Pete

I’m afraid that if you look at it objectively, you can’t wriggle out. It’s an ambiguity/inconsistency, as clear as any ambiguity ever can be!

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