Why do NEC contracts not provide a clear mechanism for Contractors pricing assumptions/exclusions (at tender stage) to be included in the contract? We often hear the phrase “we never priced for XXX in our tender submission”. We have been including an “assumptions register” in our NEC3 contracts, and listing these as Works Information in contract data part 1, agreed changes to these assumptions being a CE - 60.1.(1). An alternative might be to include a schedule of attendance where they are listed out, or to add them as additional CE’s/employers risks. There remains no clear guidance on this, yet it’s a common theme. If the assumptions are not included they have no contractual value, if they are agreed by both parties they should be in the contract as the baseline for measuring change.
p.s I suspect I may have answered my own question, the answer being to include them as Works Information?
In short, i think you did!
Personally, i think the NEC is clear, it’s clear that the Works Information / Scope information is used to specify and describe the work which the contractor is to undertake, together with any constraints on how it is to carry out such work.
Anything agreed at tender e.g. ‘I assume this, in the absence of that’ should then be included in the Works Information / Scope as a statement which can look like many things, some you have listed. Say for example the Works Information / Scope at tender stated the Subcontractor is to construct a trench, 1M deep for 20m, but during tender review it was identified that there was no information to determine it was feasible to construct the trench at that depth. There’s a couple of ways i would look to address this
At tender stage, i would suggest the trench depth is made a Employer / Client risk, stating if it exceeds a certain depth it would be considered a Compensation Event
Alternatively, a statement could be included in the Works Information / Scope specifically stating the requirements i.e ‘the Subcontractor is to construct a trench at 1m deep for 20m, surveys should be undertaken prior to the works’. Quite simply, if anything prevents you from doing this, or you identify obstructions / unforeseen services it’s a CE (in the absence of survey information)
Where the problem starts in my experience, is tender / bid teams, who are not experienced with NEC will identify numerous assumptions, but fail to incorporate them within the Works Information / Scope which leaves project teams having to have difficult conversations.
Many thanks, great concise answer there.