NEC ECS: Do i have to provide the Contractor a full Defined Cost Breakdown to my Tender sum under an NEC3 Option A ECS?

For Clarification this is not regarding pricing a Compensation Event.

We are currently in discussion with a Main Contractor to enter into a NEC3 Option A ECS. He is also on an option A ESC to a Main contractor who is on an Option A ECC to the client - essentially I am a sub-subcontractor.

He is insistent that I must provide him with a fully detailed Defined Cost Breakdown to my Tender Sum prior to him letting my subcontract. I was not asked for this when I tendered. We have already been working for 3 months on the project under a interim order/letter of intent. They have now started picking and choosing elements of my works information to omit and have started to contra-charge me his cost + his Fee stating if he knew my defined cost he would know how much to omit.

He is also telling me that his Main Contractor is asking him for my defined cost - for clarity my works is not a CE to him, we are about 10% of his works and were declared to the Client in his bid submission.

I have been resisting because my cost breakdown is very detailed and contains a lot of sensitive information I don’t believe he is entitled to see. He is now suspicious that I am hiding something, and I am suspicious that he will use it as a shopping list.

Contractually do I have to provide him with a Defined Cost breakdown to my Contract Sum? (he already has an Activity Schedule and we have agreed a full schedule of people rates and all Fee percentages)

The answer is ‘No’ for two reasons:

  • you have not entered into the contract yet, so have no obligation; and
  • even if you had, assuming your contract is unamended, there is no requirement for you to open up your entire tender to scrutiny.

a) I note that you are under a ‘Letter of Intent’ which can be all things to all people, so my answer to the first bullet may vary depending on what the words say in that letter,
b) commercial pressure often sits above the written words in the contract, so it might come down to whether you any contract or not and
c) going into a contract with this sort of atmosphere does not augur well, so I might be quite happy to walk away!

many thanks. You have given me the reassurance I needed to stand my ground. ’