We are in a contract ECC Option A and Option X15 is incorporated. We’ve got this scenario where the Contractor submitted the first programme for acceptance in line with the timescales but now realises a considerable amount of items (fencing and others) have not been priced, these items are clearly identified in the Scope but not shown on the Activity Schedule nor on the Programme.
Is the Contractor entitled to be paid for these works/items?
I would say no as the error in activity schedule is a Contractor’s risk in option A, however I cannot find any clause that states this, is there any in the contract? Does secondary clause X15 any role on this scenario? What other clauses should apply on this situation? I would say clause 20.1 which states the Contractor provides the works in accordance with the Scope? Are there any other clauses that can apply to this scenario that I am missing?
In regards to the Accepted Programme, my question is, should the Project Manager instruct the Contractor to submit the revised programme immediately (clause 32.2) or can the Contractor revise the programme at any stage (clause 32.2)? What should Parties do in this scenario in regards to the Accepted Programme once they realise there was an mistake.
Many thanks for your help,
Assuming it is the Contractor who prepared the Activity Schedule, then it is contractually his tough luck if he omitted to price work in the Scope.
While 20.1 is relevant to this view, I don’t think X15 is (off the top of my head).
In terms of the accepted Programme, I think it comes down to immediacy: if the items are in six months time, I would accept the programme but note that it is omitting items of work in the Scope. If the omitted items were going to be done within the next month and are of any magnitude, I would probably instruct a new programme submission.
If the items were on the critical path then, as a Contractor, I would submit a revised programme regardless.
Jon, thanks for your answer, yes the Contractor prepared the Activity Schedule. Couldyou please put me in the right direction as I cannot find the clause(s) in the contract to back me up on these issues. I only found 20.1 but I believe it’s not enough. Do you think clauses Clauses 55.1 , 55.3 and 55.4. 11.2 (16). 31.4 . 14.1 would be relevant here? Many thanks for your help.
Iola - it is not so much clauses back up what Jon has said, it is more of a case that there is no compensation event they can claim for if there is no change to Scope. They only way they can claim for additional cost over and above their tender price is if they can notify something as a compensation event. Clause 55.1 confirms/reminds that information in the activity schedule is not Scope. Clause 20.1 states they have to provide the Works in accordance with the Scope, and if there is no instructed change to Scope then there is no compensation event under 60.1(1).
55.3/4 are not particularly valid, although if they wanted to revise their activity schedule to reflect the items they had missed than they can for payment purposes, but any money they put against that item would have to be taken from other activity schedule items so the Prices still adds up to the same amount
Thank you Glenn, my last question about this situation is if secondary clause X.15 can be applied on this scenario , especially X15.1?
I do not see that X15 has any relevance here as that is just to say they have provided any Contractor design to reasonable skill and care (rather than to fit for purpose if X15 not included). That changes nothing in any of the answers above.