An inconsistency within the scope of an NEC contract has been identified by the contractor. What should the contractor do?
1. Proceed as Contractor sees fit
2. Notify the Project Manager
3. Stop that part of the Works
My recent poll asked the above question – the correct answer is that the Contractor should notify the Project Manager if they identify an inconsistency within the Scope (NEC4). What follows would be equally applicable for the "Works Information" under the NEC3 suite for the ECC.
In the NEC4 ECC the Scope describes the works and states whether there are any constraints on how the Contractor should provide the works. The Scope is listed in the Contract Data and can sometimes be found across multiple documents. It is not uncommon for a Contractor to find there are inconsistencies between the technical documents forming the Scope.
Clause 17.1 of the NEC ECC sets out what a Contractor should do if they become aware of an inconsistency or ambiguity in the Scope. This clause says that the Contractor must notify the Project Manager as soon as they become aware of an ambiguity or inconsistency. This means that once an inconsistency is identified, the Contractor should inform the Project Manager without delay.
The form the notification should be in is found in Clause 13 which says that it should be in a form which can be "read, copied and recorded".
Once the Contractor has notified the Project Manager of the inconsistency, the Contractor should wait for an instruction from the Project Manager which clears up the inconsistency and informs the Contractor how to proceed.
If the instruction clearing up the inconsistency amounts to a change to the Scope this may amount to a Compensation Event in terms of Clause 60.1(1). The Compensation Event will be assessed by reference to Clause 63.10 (Note: Clause 63.8 in NEC3) in favour of the party who did not provide the Scope.
So, for example, if the Employer was responsible for providing the Scope and the Contractor notified the Project Manager of an inconsistency (which resulted in a change to the Scope), the Compensation Event would be assessed in favour of the Contractor.