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NEC ECSC - Price List Item Description

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We have let a contract under the ECSC and in the Price List have described block paving items which include for proprietary bedding, grout and primer.  The choice of supplier for this system is up to the Contractor.  The areas of block paving are clearly denoted in the Works Information on the general arrangement drawings.

The Contractor has submitted a Price List, been awarded the job and then issued a CE notification regarding a Change to the Works Information stating that they have only allowed for a very narrow joint since this is what is in the block paver manufacturers data sheet.  However, the proprietary grout system they have admitted to pricing for states a minimum joint width which is greater than they've allowed for.  The Employer has asked for confirmation from their supplier that they would stand by their product if used with the joint width the Contractor has claimed he allowed for.  

Is this CE valid or should the Contractor have allowed in his Price List for the minimum joint width for the products he is proposing to use?
asked Mar 16, 2018 in Compensation Events by LA1 (690 points)  

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The Contractor's primary obligation is to Provide the Works in accordance with the Works Information (clause 20.1), not in accordance with the Price List. What comprises the Works Information is defined at clause 11.2(13) "... is either in the document called Works Information or in an instruction ...". Therefore by definition information in the Price List is not Works Information and should not be used by the Contractor to tell him what to do. The function of the Price List is purely for payment purposes, it doesn't specify standards, materials or working methods.

The Works Information should have contained the names of the proprietary bedding, grout and primer, this information should have been on the drawings.

The Contractor still has to demonstrate the Defined Cost that he's incurred as a result of the compensation event though (clause 63.2) so you should only have to pay the extra over cost and not the full cost.
answered Apr 13, 2018 by Neil Earnshaw (21,090 points)  
selected May 10, 2018 by Glenn Hide
Neil, I should have perhaps added that the work has been issued as a Work Package under a term framework and in the framework it refers you to the Price List for WI for elements of work, since it would have been impossible for the 4 year Framework to have included something for each and every possibility.  The proprietary bedding, grout and primer are the Contractor's selection as long as they can demonstrate they meet the needs of the project in terms of meeting strength criteria for specified loading.  Thus I believe that as the Works Information (the Specification document specifically) calls in items and descriptions from the Price List, then these do in fact form part of the Works Information.