NEC3 ECC: Ambiguity agreed but no effect on Defined Cost, Completion or a Key this a change in Prices?

There is an ambiguity in the WI and under cl63.8 the interpretation would be most favourable to the C as it did not provide the WI. However, although it is agreed that the clarification is a CE, on review on the subcontract info the C had banked on this being the case & so went out to tender based on the correct information. There is therefore no change to Defined Cost. As the point of the CE is to take the C back to point neutral and no loss has been incurred, this presumably means there is no increase to the Prices?

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Interesting question and not necessarily the obvious answer. Your question does not state which option the Contractor had allowed for (the cheaper or more expensive one). which will alter the answer. The contract states that the Contractor is deemed to have allowed for the one more favorable for themselves where the Employer has caused the ambiguity - regardless of what you may or may not be able to tell they have allowed for in the tender price.

In the case that you can see they have allowed for the more expensive option in the tender and that is the one you want, the contract still states that they are deemed to have allowed for the more favorable one, so contractually at least they are still entitled to the forecast difference between the two. However, I have been in this situation as a Contractor and chose not to claim it as I felt it would be a bit too detrimental on the relationship even though we were entitled to do so. Having said that, many Contractors will feel that Project Manager’s under value CE’s and have other areas of the contract that go against them, so they may well feel this is a contractual win that they are entitled to.

I suspect this would be a very rare occurrence, where you can see clearly what they have allowed AND they have allowed for the worst case scenario.