I am involved in a live NEC3 Option B contract with a very similar scenario, whereby the Contact Date is before the 2019 CECA publication. The PM considers it correct to use CECA 2019 rates and the Contractor disagreeing claiming 2011 rates as they where the current CECA rates at the time of tendering.
I would welcome comments on the position held by each.
There is a particular CE whereby the Contractor has recently submitted a quotation containing delay, again noting in these discussion they delay occurring prior to 2019 publication, hence 2011 apply.
You base your tender price against the laws and standards that are in existence at the time of tender and contract award. Your Works Information (NEC3) or Scope(NEC4) would have stated the CECA publication relevant at tender stage. Any then subsequent change to the WI or Scope will then be a compensation event. It is the same as if you have X2 changes in law, which says any change to the law that occurs after the Contract Date is a compensation event.
The Works Information (NEC3) does not state the CECA publication.
The only reference made to CECA is that within Contract Data Part 2 completed by the Contractor as part of there tender submission, in which they have not noted the relevant publication year, only ‘CECA’.
As the Contractor has not made specific reference within CDP2 to the CECA publication, and given this is NEC3, the PM considers the use of 2019 rates to apply, as CPD2 states ‘The published list of equipment is the last edition of the published list by ….’
I also believe NEC4 has acknowledge this, by amending the wording of CDP2 to read: The published list of Equipment is the edition current at the Contract Date of the list published by".