We are a Contractor operating under an NEC3 Option A contract. We priced the Activity Schedule to include an item of work, which has now been stated in the contract Activity Schedule as a provisional sum (changed by the Employer (WI has not changed)). It is generally accepted by both parties that the work is not required to be undertaken, but no formal instruction has been issued.
The contract provides Z clauses, which stipulates the Contractor must provide quotations for provisional sums upon request by the Project Manager, if the quotation is agreed then the Project Manager can instruct the Contractor to carry out a provisional sum item. The Z clause states the Project Manager may also issue an instruction to omit a provisional sum at any time. Both carrying out and omitting the provisional sum is to be treated as a compensation event in accordance with clause 60.1(4).
To address this matter contractually and change the total of the prices, we believe the work should be priced using defined cost (SSCC), with this amount then being deducted from the contract value. The Employer however, believes that the provisional sum amount in the Activity Schedule should be omitted, with the change to the prices being this amount accordingly.
Any advice as to how this matter should be addressed under the contract would be greatly appreciated.