NEC ECC: Under option C, can a negative CE be issued for scope that was included in accepted CEs

Various quotations had contained muckaway from site and CE’s were implemented. At the time they were agreed, there was a muckaway problem on site. This has now reduced due to agreement with landowners. Can the Employer ask for this muck away part of the target to be reduced in negative CE?

If it was a Project Manager assumption that they should assume that they will have to include for a muckaway within their quote, this assumption proving to be incorrect is now a new CE (60.1(17)). If there was more muckaway than the PM assumption stated the Contractor can claim for more, and if it was less it would be a negative CE to reduce the Prices.

Without a PM assumption - was the muckaway a clear requirement within the Works Information (or Scope for NEC4)? If so and there is now an instruction to keep muck on site then yes this would also be a compensation event which would be a saving to the Employer.

If however this was just a risk that the Contractor priced within the original CE, then the fact more or less muckaway is required would not be a compensation event. The Prices increase by the original value of the agreed CE, and the less cost spent will then increase gainshare to both Parties.

The simple test I would apply here is if there was more muckaway than was quoted for would the Employer have accepted a new CE for additional cost? If the answer is no, then the fact they had less muckaway equally that would not be a CE either. The Employer can not have their cake and eat it here.