We currently have a CE on an unamended NEC 3 ECSC in which we have asked the Contractor to substantiate their people rates. However, they are claiming that they cannot provide the requested information within their build up as per the GDPR regulations.
My response has been that sensitive information can be redacted. However they are standing firm in this stance. Can anyone advise on the NEC 3 ECSC’s stance on this position?
Hi CK, the clause that you need to look at is clause 63.3, it states that the effects upon Defined Cost are assessed at open market rates or competitively tendered prices with the deductions for discounts, etc.
So you have two ways to go, (i) you can compare the rates the Contractor is claiming against the open market, if they are in line then accept the quote; (ii) if the rates are not in line with the open market then under clause 62.5 the Employer assesses the compensation event.
Defined Cost is defined under clause 11.2(5) as 'the amount paid by the Contractor’, but unlike the ECC, the ECSC has no requirement for the Contractor to provide records of Defined Cost so you cannot insist upon this but it makes sense for the Contractor to be able to demonstrate ‘amounts paid’ by providing proof of payment. The ECSC does not contain the level of sophistication that the ECC does when it comes to administering the contract.
I am not a lawyer but with regards to the GDPR, I was once told that if someone signs up to a contract which requires proof of cost, etc, then they have accepted to provide it and cannot claim GDPR as an excuse - as I say I am not a lawyer so perhaps if one reads this they would be kind enough to confirm the position?
Happy to discuss.