I am hoping that you will be able to help with a query that I have.
I am working for a local authority and we are utilising the NEC3 ECC Option B Contract to carry out gardening works to our owned council houses e.g. gates, fencing, paving etc.
The project involves multiple addresses and the contractor’s project manager has said that he will need an instruction for each property detailing what works are attributed to that property. My concerns with this is that technically wouldn’t this practise look like we are instructing the works to be carried out and therefore is a CE?
Could we carry out a site survey with the contractor detailing what works are required and those quantities are drawn down from the BoQ. Therefore, the contractor knows what work is required in that property and it cannot look like an additional instruction for the works?
Hi Rob,
An instruction does not necessarily result in a CE if that is your concern; however, if I my assumption is correct, the Contractor asks for an instruction because the WI does not provide details of what works will be undertaken at each property and wants to make sure there is no dispute later.
If this is the case, and unless the Contract provides otherwise, there is an ambiguity that has to be notified either by the PM (you) or by the Contractor and the PM needs to give an instruction resolving the ambiguity (clause 17.1). Of course, if the WI is changed in this way (you need to check this) a CE could arise under clause 60.1 (1) and clause 63.8 would apply to the assessment, i.e. the original interpretation would be to the Contractor’s favour.
Your solution about a site survey is quite pragmatic, and unless there is a case of a change in the WI that would have an impact on the Contractor’s time/cost, I don’t see any reason for undertaking the process described above.
I hope this helps.
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