Our NEC3 ECC option A contract has an amendment which states:
The clause states ‘the Price for Work Done to Date is the proportion of the Prices for the proportion of each item in the Activity Schedule that is completed…A proportion of an item in the Activity Schedule that is completed is one which is without Defects which would either delay or be covered by immediately following work’.
Could I claim a proportion of the item, due to delivery of the materials?
the joy of Z clauses.
You might want to get a second view but my reading would be that materials on site would not qualify as part of a completed item (unless the item was to take delivery) since there is not physical works involved.
Under an unamended option A contract, I would say ‘No, you would have to specify delivery of the materials to Site/ the Working Areas as an activity in the Activity Schedule’.
Given the amendment made by the Client, I initially thought there was a reasonable argument that delivery of the materials is part of the activity. But there is this word “completed” which is expanded to mean “a proportion of an item … … which is without Defects which would either delay or be covered by immediately following work” and that is where the argument probably is. The outcome would depend both on the nature of the work being done and the immediately following work for which I have no details.