Using an NEC4 Option A: When creating a quotation for a Compensation Event, Contractor is applying for commercial manager time, Client says “deemed included in Fee Percentage” but Contractor thinks as per SCHEDULE OF COST COMPONENTS with regards exclusion, commercial manager is not part of the list and the Contractor is in title to apply for Commercial Manager’s time (20%) as CM is not based on site. Is the above correct?
More clarity needed.
Firstly, you say the CM is ‘not part of the list’. What list?
Secondly, are you saying that the CM is remote all the time, or that they are not based within the Working Areas but spend c. 20% of their time there?
In the former case, they are in fee (unless you have the 2023 amendments - I’m assuming not). In the latter, they are Defined Cost. I would also say that if you are forecasting that the CM will be there 20% of the time, but that to date they have not been there a day a week, I would be sceptical of the accuracy of that forecast if I were the PM.
“List” I was referring to exclusion. Schedule of Cost Components does not exclude Commercial.
Within Schedule 5 below it clearly states it is the commercial that is based off site, we consider that all commercial associated with the project that is not based at our HO is claimable.
The Fee shall include for all things or matters not listed or included which the Contractor considers necessary and shall include but not be limited to such items as:
2 All head office overheads associated with personnel and services based off Site including without
head office management resources
Head Office such as Legal and company secretariat, Human Resources
General Management including Administration
Finance and Accounts
Commercial and Procurement
Health, Safety and Environmental
There is no schedule anything like what you have reproduced above in NEC. However, you say you are on NEC4, so my conclusion is that this must be an amended Contract. I’m guessing, but it looks like the amendments could be extensive.
I’m afraid your request is beyond what this forum is here to do. You might, therefore, need to consider getting professional advice.