This Contractor is referring to a matter he alleges was not carried into the contract but clarified during the pre award stage. However, he has provided the disputed service for more than a year. I don’t sense a genuine mistake was made at contract formulation stage, and a rather terse Z Clause handles time barring.
The contract is not silent on these services. The Contractor has provided the service, which is mentioned as forming part of the time related preliminaries and general.
We deem payment to have been made. Can I add, the Contractor wants the adjudicator to rule on validity of the contract 20 months into the works programme, as he feels aggrieved that a item discussed at tender stage was not carried into the signed contract.
Contractor has attached the adjudicators ruling request to the original dispute notice which we time barred. Surely they missed the opportunity to attach the ruling to a new notice and secure a dispute.
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In very simple terms I would say that the adjudicator would settle a dispute based upon the contract that the two Parties have signed up to. This means that anything that is not in the contract would not be considered. Tender documentation that has made the final version of the signed contract is what will be used to settle the dispute.
When looking at the contract you do not generally look at what happened before the contract was entered into in order to interpret the contractual obligations, you look at them on their face.
There are however a number of exceptions to that rule around misrepresentation (if an adjudicator can deal with such a point, the case law here is mixed compare Hillcrest Homes -v- Beresford and Curbishly which says an adjudicator can only decide under the contract and a misrepresentation is not under the contract, with Air Design (Kent) -v- Deerglen which confirms the decision of the Supreme Court in Fiona Trust is applicable to adjudication that “under” should be given a wide meaning and include in connection with).
In addition to misrepresentation if there was a “mistake” in the contract (that is a legal mistake not just you think something is in error or not quite right) you can look back to pre-contract information to correct the contract.
Finally, if the contract is ambiguous the adjudicator could review the background not to change the terms as written but to assist in their proper interpretation. That said, under the NEC, there is already clause 17 to deal with this point.
The reality is, while a simple “yes answer” is correct, there are almost as many exceptions to the rule and applications of it so careful specific review is needed.