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JCT D&B - Error in pricing schedule supplied as tender document

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We are in contract on a JCT D&B. As part of the tender documents, a schedule was issued by the employer (agent). Basically the front page summarised the works for the various other tabs and formulated the tender sum. We did separate take offs etc, but then on the other tabs we completed the values against each package of works. We never touched the summary sheet.

We were awarded the works and entered contract. We then noticed when we put together the valuation document that the schedule document we had priced, had formula errors which meant that some of the packages of works had not been pulled through to the summary page. Our tender sum was therefore £60k light.

We advised the agent, though they have come back and said that the "overall price is dominant" as per the prelims A30 Tendering/Subletting/Supply. and that the ER's clearly state "This document will be used for the purpose of analysing tenders received and will not be used as a document for adjustment should any error or omission be found both in respect of quantity and pricing prior to the award of or during the contract period. No claim resulting from any inaccuracy will be accepted"

But surely these relate to errors made by the tendering party, and not errors in a contract document supplied.

Do we have a legal position on this. All i can find relates to errors that we have made, not when the error originates from the tender document.
asked Jul 23 in General by andy7689 (120 points)  

1 Answer

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There is no mechanism in the contract to correct the Contract Sum Analysis and the advise you are receiving from the agent is correct, the Contract Sum is the amount you are paid and the CSA is used only to assess Variations (and as a guide for interim payments).

That being said, as you relied upon the CSA issued by the Employer, you may have a claim for 'Mistake' or 'Misrepresentation'. This is an extensive area of law and that which applies to your circumstances will very much turn on the facts. Also, depending on the facts, the contract may be found to be void, voidable or could be rectified by a court. I suggest you take specific legal advice on this point.
answered Jul 27 by stevencevans (2,300 points)  
Thank You Steven, Much appreciated