NEC ECC: Option B - Can the contractor ask to re-price the BoQ

We are to soon let a contract which is predominately groundwork and the installation of underground drainage on a stand alone site, which is a very congested one, in existence since 1970’s.

The internal recommendation is that we let it under NEC3 Option B where any unforeseen’s such as existing services, excavation methods, water management, road closures etc. will be evaluated under a CE.

I have no issue with this proposal but the question I’m asking is one of re-pricing the BoQ as the CE’s are that numerous, several per day that the rates tendered are from the contractors perspective deemed unproductive, they are not getting the meterage they envisaged at the outset.

Can the Contractor under NEC3 request that the BoQ be re-priced or are they tied to the rates they submitted?

Under option B you only use the bill of quantity rates to assess compensation events by agreement (and on a case by case basis). Otherwise they are assessed using Defined Cost which is the forecast elements of the components within the schedule of cost components. It means that if a Contractor has a high rate for something the Client is not stuck with it, but equally if there is a low rate then the Contractor is tied to that low rate for contract works but not for additional works i.e. CE’s.

You would have to write a Z clause if it is your intent to make the B of Q rates the rates to be used in assessing compensation events i.e. amend 11.2(22) to state where there is an applicable B of Q rate that should be used, and SSCC only to be used where there is no equivalent/similar rate.

I do think the standard wording/approach of NEC is fairer, although it clearly now requires a higher level of administration/potential increased subjectivity to calculate the value of the CE. It protects both Parties so that only the true forecast cost will be payable rather than using rates that may now turn out to be incorrect which would then be unfair on one of the Parties in assessing work that had not been known about at tender stage.