NEC3 ECC: What takes precedent the Instruction to Tender document or Contract Data Part 1

We have bid a Option C target cost contract. The instruction to tender informs the tenderer that all the pain on the contract will be absorbed by the Contractor and refers you to the Contract. Contract data part 1 details that there is no pain for the contract over the target cost. We have been awarded the contract and upon signing the contract we have noticed that the pain over the target cost has been changed to 100% pain to be absorbed by the Contractor. Can we refuse to sign the contract as the details in contract data part 1 has been changed or does the Instruction to Tenderers take precedent and suggest that we always knew that the pain was to be absorbed by the Contractor.

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If the basis upon which you tendered for the work has been changed without discussion then you should not sign the contract. Once you do you do your are accepting the terms of the revised contract.

The ITT is not usually listed as being a contract document and therefore rules re ambiguities and inconsistencies in NEC3 ECC clause 17.1 do not apply as the ITT is not part of the contract.

It would therefore be unwise to sign the contract. Better to advise the Employer of the changes and either he can revert to the original intent or he gives you an opportunity to re-price on the basis of the revised contract.

The Employer will also need to consider the impact of the revising the terms of the contract if EU procurement rules apply.