The contractor is working on an NEC Option A with an itemised BOQ for the works. One of the items is carriageway patching. The tender drawing show 500m2 of patching and we visited site at tender stage and measured and priced for the same. After works has started the client has marked 600m2 of patching. I raised an EW as drawings indicated 500m2. His reply was that it was not an EW/CE as contract stated that contractor was to satisfy themselves with the quantities. Surely this is wrong as every tenderer could have assessed the patching requirements differently and we had to use the WI and drawings as our guide.
Has anybody any experience of a similar scenario they could share.
If the area marked out is greater then that shown on the drawings then there has been a changed in the Works Information and it is a CE. Whether the original area billed was equal to the area shown on the drawings is academic (this was the contractor’s risk unless the BOQ is stated as Works Information)
I’m not sure how or why the Employer (client) has used Option A with a BoQ, presumably you have some Z clauses to sort out the mess?! Option A uses an activity schedule not a BoQ and the risk of changed quantities would normally be the Contractor’s. Option B however does use a BoQ and the risk of changed quantities would then be with the Employer.
The first point to understand is the contractual status of the tender drawing, is it part of the Works Information? If so then you should have entitlement to a compensation event, unless Z clauses have been used or other contract terms introduced for example through incorporation of the tender documents and / or tender queries & responses. If the tender drawing is not part of the Works Information then you’d need to look more closely to understand whether you have accepted the risk of changed quantities in some other way.
Option A uses an activity schedule, not a BoQ, so what does this activity schedule look like, check what is referred to in your CDpt2? If the BoQ is not the activity schedule, and not otherwise incorporated into your contract, again you may have accepted the risk of changed quantities (subject to the comment above about the status of the tender drawings).
You were right to notify this as an early warning, as this matter could affect T/C/Q, regardless as to who ends up paying for the extra 100m2.
Unfortunately the Employer is not using the contract as intended by NEC, based on the information you’ve provided it’s impossible to shed much more light on this without seeing the contract documents.