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NEC ECS: addition of rates to the contract, Option B

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I'm working with a NEC3 ECS Option B. The subcontractor has forgotten to provide a rate for specific item of works that was stated on the BoQ to be priced for (the description of the item and its quantities are in the BoQ, however they left a rate of £0.00).

They are now applying for those works as they are carrying them out. Is it possible to add in the rate that was missed out of the BoQ into the contract? or could we add in the item of work that was missed as a Day rate into the contract?

Because right now i feel the only way for them to charge for the work is via a CE however i don't believe there is a clause they could use because they're not doing additional works and we haven't changed the scope of works for them either.
asked May 15 in General by HH2020 (140 points)  
edited May 18 by HH2020

1 Answer

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By agreement anything is possible. Clause 12.3 states that no change to the contract has effect unless it has been agreed, confirmed in writing and signed by the Parties. Contractually the Contractor is in a week position as this is a lump sum price and there are no changes to the B of Q without compensation events. However, you would like to think the Client would have questioned that at tender stage and if this has been an oversight by both Parties then more likely that both would agree to a change here.

So by written agreement you can agree to change the B of Q, or if your own internal governance as a Client make that difficult, I have seen Clients in this instance agreeing that this is a compensation event (and just mutually agree how that can be notified to be accepted) and allow it to be increased that way. All of this assumes of course that you will agree to the rate the Contractor is proposing - so the Contractor is still in a weak position but at least it looks like you the Client feel they are entitled to something.
answered May 20 by Glenn Hide Panel Member (84,800 points)