NEC3 ECC: The PM has insisted on a specific supplier for an item affected by the exchange rate - is this additional cost recoverable? Option B

The Pricing information from the client refers to a specific supplier for a boiler. The boiler is supplied by a continental company and no alternative will be accepted by the Project Manager.

Due to the current financial markets, specifically the exchange rate, this item has increased in cost by several thousand pounds.

Is there any way that this cost is recoverable under the contract? The Contract is NEC Option B

Clause 55.1 in the ECC states “Information in the Bill of Quantities is not Works Information or Site Information”. Therefore if the name of the supplier is only stated in the BoQ and not in WI then are not constrained to use the stated supplier and if the PM wants to impose that constraint on you he / she would need to issue an instruction stating this. The instruction would then be a 60.1(1) compensation event.

The mechanism for resolving the issue is clause 17.1 as there is an inconsistency between the documents which are part of the contract which the PM resolves by issuing the instruction. When it comes to assessing the compensation event clause 63.8 will be applied i.e. it should be assessed as though there hadn’t been a constraint originally as the Employer prepared the Works Information not you, this is called contra preferentum in law.