NEC4 Option A - Priced with a BoQ

NEC3 and NEC4 Contracts
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I have recently come across an NEC4 Option A contract where the price was established using a “pricing schedule” (effectively a BoQ, the client issued the quantities to complete the works and Contractors entered rates for each line item). The “pricing document” was converted into an Activity Schedule. The Contractor had an item of “152m3 of C30 concrete to be poured” in the contract Activity Schedule, they have ended up using 182m3 on site. The Contractor is trying to claim the extra over (30m3) is a change and a CE, but the contract has not been amended to reflect this.

Cl55.1 states “The Activity schedule is not Scope or Site Information”. I can’t see a way the Contractor can persue this as a CE? I think a mistake was made in the drafting of the contract and in essence the extra over has become the Contractors risk by default. To prevent this the contractor could has stated in the Scope "The Price Schedule/Activity Schedule is deemed to be Scope, changes to the stated quantities would form a change to the scope (hence a CE Cl.60.1.(1)). Or the stated quantities could have been included as an additional Clients Liability (Cl.80). As none of the above was included in the contract wording, is there any other recovery method for the extra over? or does the Contractor have to complete that element of works at a loss?

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There are many reasons for which the quantity could have increased such as wastage, Defects, changes to Scope, compliance with methods of measurement in producing the initial BoQ’s. A change to the Scope should have a corresponding priced CEQ. If this is not due to a change in the Scope then the only other potential avenue for recovery which I can see is if the Contractor were able to identify where the error has arisen and, if it has arisen due to a fault in the design contained in the Scope provided by the Client, it would be a CE under 80.1.

I don’t see that it necessary to add clauses to an Option A to make it an Option B. If you wanted the Client to retain the quantity risk in the future, you could decline to contract on an Option A and propose an Option B as an alternative, or simply undertake checks on the quantities before agreeing to be bound by them.

I’m afraid that the Contractor has taken the risk (and opportunity) of quantity error. If the Activity Schedule stated 200m3 and the Contractor poured 180m3, would they be so keen to hand back the benefit?

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