NEC ECC: Items missed from fixed price

Our Contractor has missed a certain number of items (fence bases) when pricing an Option A job.

Their argument is ambiguity over red-penned drawings however the construction drawings issued show the associated chainage and required number of bases. Our assessment is these have been missed when taking off.

Their offer stated their price was based on the incorrect number of bases and have put a Comp Event in for the extra.

Does the caveat in their offer mean they are entitled to the costs of the remaining bases? My initial assessment is that as these were missed from the drawings prior to acceptance, the extra bases should have been included in the fixed price and are therefore disallowable.

I cannot answer this due to uncertainty over.:

  • what ‘red-penning’ means;
  • who did the red-penning and when?
  • when were the construction drawings issued: pre or post-contract?
  • where was the caveat in their offer stated?
  • who missed the bases from the drawings prior to acceptance: were they not on the drawings, (but stated somewhere else in the Scope)? Or was it the Contractor who did not take them off?

The simple answer would be to refer to the Works Information / Scope and what this specifically references. If the construction drawings have been marked up (red lined), to show the ‘as-built’ information then it should be clear in the WI whether these drawings are to be used. If the drawings were issued like this then there may be ambiguity, depending on how clearly the information was marked up.