It is our understanding that for a design and build contract using ECC main option A (priced contract with activity schedule) that the employer provides its work information in contract data part one and the contractor provides its works information in contract data part two. In this scenario, will the supervisor (as contracted by the employer) be responsible for the checking that works information provided by the employer, the contractor, or both? If there is a requirement for the supervisor to check the works against the contractor-provided works information, how far does this responsibility go given it relates to contractor-designed elements?
Answer
The works information is binding on both parties, whether it is provided by the employer or by the contractor or as part of its initial design. So the contractor is bound to carry out the works in accordance with both sets of works information. If the employer is not happy with what the contractor is offering in its works information at tender stage, this needs to be sorted prior to award.
Once the contract is awarded, the contractor develops its design, but that design development is not works information (both sets). It is for the project manager (not supervisor) to accept this design if the employer has asked to see it before the works are constructed (see subclause 21.2).
The supervisor’s role is to ensure that the contractor’s work on site complies with the works information (both sets) and the accepted design. If the supervisor is not happy with any part of the work information, the supervisor cannot change it. All supervisors can do is bring their concerns to the attention of the project manager.
Only the project manager can issue an instruction to change the works information, and that applies to both sets of works information. The instruction would normally be a compensation event under clause 60.1(1), unless one of the exceptions listed applies. For example, if there is an inconsistency between the two sets of works information, the project manager can issue an instruction changing the contractor’s works information. This would not be a compensation event because of the exception in subclause 60.1(1).
Finally, you should remember that acceptance of anything, including work, by the project manager or supervisor does not change the contractor’s liability – see subclause 14.1. So, if the supervisor does not discover or notify a defect, this does not absolve the contractor from its liability.
