ECS Understanding 60.7

Trying to understand ECS Opt B Cl 60.7

We’ve got a situation as the subcontractor whereby the contractor has verbally notified us of an inconsistency in the Bill, its Highways Method of Measurement.

Effectively they are chasing a saving in potentially reducing the dig depth of some duct runs.
The runs are measured from finished surface level to invert. The PC believes these should be from the reduced level to invert.

The measurement rules say “where in the Contract a commencing level or a minimum level of cover is stated from which excavation shall commence, then the depth shall be taken to that stated level”

In our price we always assumed dig would be not including the surface in our calculation.
So feels a little onerous to be asked for the saving.

I’m not sure if this will be a CE or not, the description in the BoQ is in accordance with the measurement rules, so arguably not ambiguous / inconsistent. And the WI isnt going to change because the ducts are still at the same depth. But we did start digging from the reduced levels as per our site methodology.

I think the only way really this would work is if the PC wants to depart from the measurement rules to try and recover the perceived saving? Is that possible ?

John, 60.7 is an assessment rule for a CE resulting from a correction made under clause 60.6 - has a correction been made and if so what, and is it correct? From what you say it sounds as if the BoQ was always correct in which case there is no need to correct. Has anyone notified a compensation event?
If there is a CE under 60.6, clause 60.7 sets the starting point for the assessment of the effects on the forecast Defined Cost - 63.1; the Contractor is assumed to have taken the BoQ as correct therefore that helps establish what the forecast Defined Cost of the work would have been based upon.
Contractors should not be trying to use the contract in such a way purely in order to recover costs, there has to be genuine cause and entitlement, plus the Parties should be acting in accordance with clause 10.1 and acting as stated in the contract and in the spirit of mutual trust and co-operation. There is recent case-law around the meaning and interpretation of mutual trust and co-operation that might be helpful - Costain v Tarmac 2017; Van Oord UK Ltd v Dragados UK Ltd 2021.

Thanks for the response, much appreciated.

No formal CE notified as yet, however it has been verbally mentioned as an avenue they’d like to pursue. But I’m not really sure about how they think the mechanism would work.

I think the logic is they change the commencing level in the BoQ item description from “existing ground level” to “reduced level” and expect a cost reduction from the relative reduction in dig depth.

I wasn’t aware of the Costain v Tarmac case, interesting reading.