NEC ECS: Whose liability are items not on the B of Q?

NEC3 and NEC4 Contracts Compensation Events
1

There is a requirement for CCTV surveys to be carried out but the contract specification does not stipulate who carries out the CCTV works
Subcontractor informed the contractor it priced the works on the basis that the contract was to be ECS Option B - priced contract with bill of quantities.
The CCTV surveys are a measurable item and should have been included in the bill of quantities at tender stage if it was intended that subcontractor was to carry out the works.?

Contractors response:
Clause 5 of the subcontract form of agreements states "the subcontractor shall so design, execute, complete and maintain the subcontract works so that no act or omission of his relation thereto shall constitute, cause or contribute to any breach by the contractor of any of his obligations under the main contract and the subcontractor shall, save as aforesaid , assume and perform hereunder all the obligations and liabilities of the contractor under the main contract in relation to the subcontract works. nothing in this clause 5 shall constued as creating any privity of contract between the subcontractor and the employer,

Contractors response: (part 2)
The contractor will like to draw the subcontractors attention to schedule 3 (special conditions) clause 7 (55) "the rate included against each bill item shall include for all labours and any other resources necessary to complete the item and all attendant or associated ancillary work as may be described or reasonable inferred from the documents forming the subcontract, The CCTV survey item is not an item on its own, its linked to each individual BoQ item,

The contractor determines that the CCTV of drainage is part of the subcontractors obligations,

note this is a Labour & Plant only contract

2

This is one where the exact wording is important, but on the face of it :

  • the Contractor has passed down their contractual obligations in terms of not putting them in breach of contract under their main contract. This does NOT mean you have to do all the work in their contract if they have not specified it (because that would be ridiculous !);

  • there also seem to have a clause which expands the coverage of any bill rate to include “associated ancillary work as may be described or reasonable inferred from the documents forming the subcontract”;

  • however, the contract docs do not explicitly state you have to do the CCTV work, but it could be “reasonably inferred”.

However, without seeing the wording in the contract, I don’t know.