NEC 3 - Headhunter's fee

NEC3 ECC Option D – Schedule of Cost Components –

Headhunter’s fee
The Contractor used the services of a headhunter agency to bring on board to the Project two (2) of its key People, the Construction Manager and the ESH Manager.

Contractor Position
The Contractor then claims that the fees / commission paid to the headhunter falls under item 4.3(h) - Specialist Services of the Schedule of Cost Components (SCC) . Also, the Contractor then showed that in the pricing details (submitted during tender) of the Bill of Quantities, an item was specifically included for the engagement of such services. Thus, when the parties executed the Contract, the Contractor claims that the Employer agreed that such services is part of the total of the Prices.

Project Manager Position
The Project Manager argues that the employment of headhunter to hire Key Personnel is not part of item 4.3(h) - Specialist Services of the SCC in accordance with the page 130 of the NEC 3 Guidance Notes, “the Fee”, 4th bullet, Advertising and Recruitment Costs and under Core Clause 55.1 of the Contract stipulates that information in the Bill of Quantities is not Works Information. Moreover, it is the obligation of the Contractor to employ experienced and qualified key staff.

Which side has the correct interpretation of the Contract?

This matter was previously discussed (see the following link);

I can understand the Contractor 's position and the fact that such resources may not be required if they weren’t awarded the contract.

For Option B, however, the requirements of the Schedule of Cost Components don’t apply as PWDD references the Bill of Quantities as the basis for calculation. This would likely come down to whether the item in question has been measured in accordance with the stated method of measurement. If it hasn’t then it can be adjusted under clause 60.6 and the Prices may consequently be reduced, as appropriate.