The Employer tendered the contract on an NEC3 ESCS. However when putting the Price List together, it supplied a Bill of Quantities for the Contractor to price similar to that of an Option B ECC contract.
Items for testing various stages of the works is included in the BOQ however there is one test missing. This test is however included in the Works Information.
Under ECC the risk for an item missing from the BOQ but in the WI would be the Employer’s risk.
Under ESCS does the risk for an item missing from the BOQ (in essence the Price List) but which item is in the WI move to to the Contractor?
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In the absence of an express term dealing with errors in the Price List e.g. ECC clause 60.6 I agree with your interpretation that errors in the Price List under the ECSC are the Contractor’s risk.
Your question highlights the danger of using the ECSC for anything other than simple works - if a BoQ is required rather than a simple Price List then the works are most likely to be more complex than the ECSC contemplates.
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This is a common issue with the ECSC. However, I would disagree with Neil’s conclusion. NEC3 ECSC, clause 60.1 (13) states as a definition of a compensation event “A difference between the final total quantity of work done and the quantity stated for an item in the Price List”
The quantity stated in the Price List is non-existent. The final quantity of work done will be one test. Therefore, there is a difference.
Often, however, clients write in an additional condition of contract to say errors in the Price List are the Contractor’s risk and delete this compensation event … nice !
Note that in NEC4, they have modified the wording to “The Client gives an instruction to change a mistake in the Price List.”
Thanks Jon - would your comments be different if there was no item at all in the price list for carrying out this specific test instead of just no quantity?
I think that is open to debate, but definitely a possibility. All other things being equal and without express wording otherwise e.g. additional conditions of contract, the error is by the Employer, so would count against him.