We are working under a NEC 3 Option C Contract.
All unforeseen Ground Conditions are the Contractor’s Risk.
My assumption is that whatever risk, which becomes viable from below ground is covered in the Fee!
We have a Piling Contractor on site, on a re-measurable Sub-Contract, he has a BOQ in which there is an item for Standing Time for Rig and Crew; Rate Only.
As a result of conditions below ground he has hours against this item, which are genuine.
Under the Defined Costs we should be paid for – ‘The amount of payment to Sub-Contractors for work which is Sub-Contracted……’ so the Client should pay for this ‘Standing Time’.
I cannot see that the ‘Standing Time’, is covered in the list as a Disallowed Cost!
So my assertion is that the Client should pay the Standing Time. (Currently, he is disallowing it, as he is saying it is realised Risk, which is in the Fee).
I cannot see a Contractual reason as to why he should disallow it, but I can see that if we are paid for it – it attracts Fee (which he already is paying (whether we had the foresight to include something or not)).
I can only see a downside in as much as we get nearer to the Cap quicker and we lose on Pain/Gain, but is a genuine expense, for which we should be paid by the Client?
Let me start by saying that I disagree with one of your opening sentences : “All unforeseen Ground Conditions are the Contractor’s Risk.” Under a target cost contract, costs are shared as per the pain / gain formula, so they are not exclusively Contractor costs !
Having said that, I agree with the rest of the logic in your query. You are paid what you pay your Subcontractors in accordance with those subcontracts and being a “realised risk” (whatever that means) is not a contractual reason for disallowing it. You could argue that “realised risk” was in the gain part of your Prices but, like his argument, it is irrelevant contractually. What matters is what the contract says !
So, in summary, I see no reason why you should not be paid standing time as a Defined Cost + Fee, but as you note, it does affect the pain /gain share at the end of the contract.
Agree with Jon’s comments and especially that a target contract IS A SHARED RISK CONTRACT