We are the project manager on an NEC3 Engineering and Construction Contract (ECC). If information referred to in the works information as being provided as part of the contract is not actually provided, is this a breach of contract by the employer? The information in question consisted of outline method statements (prepared by consultants drafting the contract) that the contractor was supposed to use in preparing its own detailed method statements of certain environmentally sensitive works. The works information refers to these being provided with the contract, not during its duration. The absence of the information was not a deliberate omission, and the contract was awarded without it. Neither of the parties appeared aware of its absence until a considerable period into the contract, when the contractor notified on the matter. Until this point, the contractor had proceeded to prepare its own detailed method statements and complete construction of environmentally sensitive works without the outline versions referred to. We consider that as the works have progressed without the information, providing it now would not add anything and we have advise the contractor accordingly. The contractor has notified a clause 60.1(8) compensation event under 61.3, hence our question. If the parties entered contract without the information, then surely neither of them can rely upon it, as it does not exist as being a part of the contract?
This is not a breach of contract. Even if it were, it would not help the contractor at all because it had no effect upon defined cost, completion or meeting a key date − see clause 61.4. That is because the contractor has done what it wanted without any consideration of the missing information. This is an inconsistency in the works information, about which the contractor should have notified you as the project manager, see clause 17.1. If the contractor had done so before the work was carried out, you would have had two options to resolve the inconsistency. You could have either deleted the reference to the missing material in the works information, which would not have been a compensation event for the reason given in the previous paragraph, or you could have added the missing material into the works information, in which case that would have been a compensation event under 60.1(1). But all of this is now theoretical because the contractor did not do what it should have done at the time, that is notify an inconsistency, and now the work has been carried out it cannot be corrected in this instance. In all of this the contractor has suffered no loss.
