The specification provided by the Architect and included in the Works Information has described and given the type of product to be used in the construction. Essentially approximately 1,750m2 of a basic carpet tile are required.
The BoQ has 1,750m2 of carpet tile as required but has the additional description that they are to be from a higher product range and have a rubber underlay (possibly copied from another scheme).
The BoQ has been priced at a level corresponding to a higher specification of material.
The Architect has confirmed that they only require the lower specification of carpet tile. They have suggested that there should be a resulting saving.
Contractor claims that they ignored the BoQ description and priced the Works Information instead and therefore there is no saving.
This leads to two questions. If they install the lower specification should there be a saving? Could the Architect insist on using the BoQ product despite there being no corresponding specification item?
The works are using NEC3 ECC Option B.
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Couple of things here.
Firstly the Contractor’s obligation is to Provide the Works in accordance with the Works Information (clause 20.1) not in accordance with the BoQ, therefore you are contractually bound to supply the basic carpet tiles. In NEC contracts the pricing documents, in your case the BoQ does not specify the standards or materials that are to be used, clause 55.1 makes it clear that information in the BoQ is not Works Information or Site Information.
If the PM wanted you to supply the higher spec tiles then they would need to instruct you to do so under clause 14.3. Which would lead to a compensation event under clause 60.1(1). In assessing the compensation event clause 63.8 would come into play: "A compensation event which is an instruction to change the Works Information in order to resolve an ambiguity or inconsistency is assessed as if the Prices … were for the interpretation more favourable to the Party which did not provide the Works Information. " i.e. the Contractor has priced for the basic carpet tiles.
If the PM decides to correct the BoQ to state basic tiles instead of the higher spec ones then they would need to do this under clause 60.6: “The PM corrects mistakes in the BoQ which … are due to ambiguities or inconsistencies.” and this could “… lead to reduced Prices.” Clause 60.7 also comes into play as there is an inconsistency between the BoQ and the Works Information and it is assumed that you have taken the BoQ as correct i.e. priced the higher spec tiles. Therefore yes I would expect the rate to decrease as a result of this correction.