NEC3 ECC - Option B - CESMM Filling v Backfilling Payment Working Space

Contract: NEC3 Option B Amended

Issue: CESMM 4 Backfill around Foundations

Firstly I think this is more of an issue with measurement potentially than Contract however if anyone can assist it would be appreciated.

The Subcontractor has raised an issue of payment surrounding the backfill around foundations. The issue as follows:

  1. The subcontractor is to construct foundations
  2. The subcontractor has excavated their working area
  3. The ground they have excavated for their working space is unsuitable for backfill
  4. The Site Information shows made ground unsuitable to be reused as backfill is present in the areas from borehole information
  5. Specification in the Works Information states that any unsuitable backfill material is to be replaced with type 1 sub base
  6. The Subcontractor is now claiming for the material cost for bringing in Type 1 material

My query is that under CESMM 4 the cost of working space excavation and backfill deemed necessary for the installation of the structure is included within the excavation rate under coverage rule 1 of Class E. However the issue here is that imported material is required rather than the as dug material for backfilling of the working space. As this was known at the time of tender should this have been included in the rates or should it have been a separate BOQ item of filling imported material even though the specification in the Works Information and Site Information allows for this to be known?

Under option A this would not be an issue however the measurement under Option B has caused this.

the issue of excavating and backfilling work space is a matter for the Contractor to consider and include within its rates. If it is clear that imported material will be required then that should have been allowed for. I have assume that the Contractor is not seeking a cl 60.1(12) CE.