We are an employer using the ECC and the works information states that our contractor is to design the works. During the tender period, the contractor submitted an outline tender design and we later entered into a contract. Nothing was said about the design submitted. If it is subsequently identified during the detail design stage that part of the contractor’s design is not in accordance with the works information, could it be deemed that the design is not acceptable as it does not comply with the contract? Or, as we went into contact with that outline design, do we have to accept the error?
From the question we are not sure what design you are referring to, but let us assume this is works information for the contractor’s design as set out in contract data part two. In that case, the design is part of the works information (see the words used in the contract data) and is binding on both parties. Your project manager is however entitled to change any of the works information, whether it is that provided by you or the contractor – see clause 14.3. That instruction will normally be a compensation event under clause 60.1(1) but that clause does have some exceptions to that general rule, as set out in the clause itself. One of those exceptions is an instruction to change the works information provided by the contractor for its design to comply with works information provided by the employer (see 2nd bullet of clause 60.1(1)). Your project manager can therefore instruct a change to the works information provided by the contractor for it to comply with the works information provided by you, and that will not be a compensation event. However, such changes can only be made to make it comply with the original works information provided by you – any other ‘nice to have’ changes will result in a compensation event occurring.