NEC ECSS: Scope items not priced in the activity schedule/BoQ

If items/activities have been included in the Subcontract’s Work but have not been priced and included in the price list, should/can a CE be raised for these items/activities or is it correct to assume that is Subcontractor risk?

Assuming NEC3 ECSS:

The Subcontractor’s primary obligation in the subcontract is to “Provide the Works in accordance with the Works Information” - see clause 20.1. Note also that the term “Provide the Works” is also a defined term at clause 11.2(11).

So provided the items / activities are described in the Works Information you have an obligation to carry out those works. Your only entitlement to a compensation event is at clause 60.1(1) “the Contractor gives an instruction changing the Works Information”. Therefore it follows that there can be no CE if the work was already described in the Works Information.

It depends:

  • if the Subcontractor prepared the Price List by taking items off the Scope and missed something out, then ‘No’ because the Subcontractor’s obligation is to Provide the Works in accordance with the Scope (clause 20.1) and therefore the Contractor has no reason to correct a mistake in the Price List (a compensation event under clause 60.1(12));

  • if the Contractor prepared the Price List it is a bit more subjective and introduces elements of contract law, because the contract does not cover this situation. As a Contractor, I would argue the same as the previous point. As a Subcontractor, I would argue that under contract law, as the Contractor prepared the Price List and left something off, there is a mistake in it and ‘should’ correct it under the contract. I would cite contract law and the contra proferentum rule whereby ‘ambiguity is interpreted in the light least favourable to the party who created it’ i.e. the Contractor.

To avoid these arguments, in the ECSC and ECSS, when the employing party is preparing the Price List, you often either see a catch-all final item for ‘anything we have forgotten above’ or an additional condition of contract saying that it is the contracting parties obligation to satisfy themselves as to its completeness and price accordingly with no liability of omissions falling on the employing party.