Expert advice in minutes not days. Register it's free and ask your first question now.
  • Register
ReachBack is our free community help desk for construction professionals. A library of high-quality questions from real users with answers delivered and curated by a panel of industry experts.

4,044 questions

4,189 answers

430 comments

33,574 users

Register its Free

Download here

NEC3 ECC: Option A - Specific Detail referenced in the Activity Schedule does not correlate with supllied Works Information.

0 votes
118 views
Employer has issued sets of drawings to contractor to price works, proposing an Option A contract. The Contractor has compiled an Activity Schedule with associated prices for undertaking the works, however the Contractor has defined within their assumptions that they have 'not allowed for construction of the ballast wall required within the Works Information and have instead allowed for a cheaper ballast board wall, therefore if the Works Information is to be adhered to, there will be an additional cost'. The assumptions are listed in the subcontract agreement however I am of the opinion that regardless of the Contractors assumptions, they are required to price the Works Information and as there has been no change to the Works Information - no CE is applicable for an uplift in cost.

I would be interested to hear your views
asked Jan 23 in NEC3 Payment by Martin  
   

1 Answer

0 votes
It depends on how these assumptions have been recorded. If they had just written this within their description of an activity schedule item, then given the fact that the activity schedule is not Works Information this would not be something that the Contractor can claim for.

However, if as it appears here you have a very clear list of Contractor assumptions that the Employer has listed within the contract I would say this is different and now a contract document. Why include it if you can see that is what the Contractor has priced for if you the Employer intend to ignore it when it comes to assessing CE's? Rightly or wrongly it would appear the Contractor has made it clear what they have allowed for, and the Employer has accepted this by a) accepting their bid and b) including these assumptions within the Contractors signed contract. This I would say would now be a compensation event - but not the cleanest way of dealing with it as you in effect have an ambiguity/inconsistency from day 1. Any such assumptions could/should have been dealt with one by one to make sure both Parties understand the associated liability with each of these items and incorporated within the contract accordingly rather than a separate list of assumptions.

Another cleaner way the Contractor could have dealt with this would have been a TQ (tender query) that everyone would have seen but everyone then understands the answer.  Would the Employer entertain an alternative to the Works Information - if Yes that is what everyone prices, and if no then they know to price the higher spec. I know some Contractors might consider this affects their commercial advantage, but it takes away a potential ambiguity that they might practically if not contractually lose out on.
answered Jan 23 by Glenn Hide (26,200 points)  
Another approach, at time of tender, would have been for the Contractor to submit a 'compliant tender', which included a price for the works to the original specification, and an 'alternative tender', for the cheaper option.  The Employer could then have decided which he wished to accept, the Contractor's commercial advantage of his alternative would not have been given to others, and everybody should have known what was being built and for what cost.