NEC3 ECC: Amount due to a Subcontractor under ECS Option B for items missed off their BOQ

The Subcontractor has applied for more than double than that agreed at Tender Stage for an item within the BOQ produced by the Subcontractor.

At Tender Stage, the Subcontract Package did not provide a BOQ from the Contractor. The Tenderers were provided all Construction Drawings and asked to provide their own BOQ outlining all items necessary to complete the Subcontract Works inline with the Subcontract Works Information and Conditions of Contract. (NEC3 ECS Main Option B 2005 + 2006 amendments)

As the Subcontract Works Information hasn’t changed nor any additions instructed, it is understood the Subcontractor is entitled to the Tender Sum only?

Under an Option B subcontract the Price for Work Done to Date is, in part, the quantity of completed work for each item in the Bill of Quantities multiplied by the rate.

Therefore if the quantities in the original BoQ were inaccurate the risk sits with the Contractor unless any Z clauses have been used to transfer the risk.

Under option B you would be expecting the Contractor to prepare the BofQ and the Subcontractor prices the Bill - with Contractor taking risk of errors in the Bill (see option B clauses 60.4-60.7).

The fact you have asked the Subcontractor to produce the BofQ does not necessarily mean that they are now taking on the risk of any errors - unless you have other wording in your tender documents that clearly switch this risk allocation. Therefore I think you need to go back over your tender documents and also Z clause amendments to see if this has been done.

By the way - an Option B contract with Subcontractor taking risk of errors in the BofQ is A.K.A. Option A!