The first bullet point of clause 11.2 (25) is “Disallowed Cost is cost which the Project Manager decides - is not justifed by the Contractor’s accounts and records …”.
Clause 52.2. states what accounts and records the Contractor has to keep, although these are abit high level so many Employer’s are fleshing out in the Works Information more detail as per the last bullet of 52.2. However, it sounds as if there are no additional requirements stated in the Works Information, so based on the informatiion.
In addition, the second from last bullet point of clause 11.2 (25) gives another heading as “resources not used to Provide the Works (…) or …”
As this is a civil law, the Contractor has to satisfy the balence of probability test (not the beyond reaosnable doubt). So on the balance of probability, have they spent this amount of time working on your contract. Unless the time spent is obviously excessive, if you have no evidence to the contrary, the answer is probably not.
So, you need to :
- to disallow historical costs, you need to find sufficient evidence to disallow historical cost e.g. emails which indicate they were doing planning, qs’ing etc on other projects while charging it to you (which is also fraud, a criminal offence !). Be aware that this could have quite a significant effect on relationships ! and / or
- going forwards, change the Works Information to have more rigorous requirements for justifying Defined Cost.