Hi,
Contractor submitted a CE which was accepted and the works took place last week.
The Contractor allowed 10 working days for the work and the work took only 5 days.
As client, I think I am correct in being unable to revise the CE and the Contractor has technically made a ‘gain’.
Should I however discuss with the Contractor that in the spirit of NEC that they should re-submit a new CE reflecting the actual period of work, i…e 5 days and half the cost?
There is nothing to stop you discussing this approach with the Contractor. However, the Contractor would be under no obligation to reduce the Prices based on what has actually happened.
The obligation to work “in a spirit of mutual trust and co-operation” under clause 10.2 comes second to working “as stated in the contract” under clause 10.1 i.e. to make a forecast and stick to it. The case law is very clear on this.
Putting this another way, if the CE took 15 working days instead of 10, would you be as willing to pay the Contractor more since it under priced the CE? I would assume no!
Practically speaking, if the Contractor is willing to take less than it is entitled to in this scenario, then the Parties would be working outside of the contract. Best just to capture whatever is agreed in a short agreement in signed writing to ensure compliance with clause 12.3. It could just be a one-pager to say what has happened, and that the Prices are reduced by X and the Completion Date is changed to Y etc.
I hope this helps!