NEC ECC: Working Area Overhead Percentage and Agreed Subcontract Rates

NEC3 and NEC4 Contracts SOCC SSOCC
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Does the Working Area Overhead percentage get applied to People that are paid using Agreed Subcontract Rates?

The reason I ask is that when making an assessment the SOCC is not used when assessing labour which are done using the Agreed Subcontract Rates. Part 44 of the SOCC states "applying the percentage for Working Areas overheads stated in the Subcontract Data to the total of people items 11, 12, 13 and 14.

The confusion is that 11, 12, 13 and 14 of the SOCC does not apply as I am using the Agreed Subcontract Rates. However with some items such as PPE, this is based on defined cost (Excluded from the rates) this would fall within the SOCC.

I understand that people may point out the first items in the SOCC that states that People related to “people who are directly employed by the Subcontract and whose normal place of working is within the working areas”

Would be great to see what different people think as it’s one that had me scratching my head.

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SOCC clause 44 says “A charge for overhead costs incurred within the Working Areas calculated by applying the percentage for Working Areas overheads stated in the Contract Data to the total of people items 11, 12, 13 and 14.”

Core clauses 52.1, 2nd sentence says “Defined Cost includes only amounts calculated using rates and percentages stated in the Contract Data and other amounts at open market or competitively tendered prices with deductions for all discounts, rebates and taxes which can be recovered.”

On the surface these could be construed as being in conflict, but …

… if the “rates” in clause 52.1 are those you tendered and you can demonstrate that they were calculated in approximate accordance with the people items of 11, 12, 13 and 14, then I see no reason why the percentage for WA oHs shouldn’t apply.