We are close to completing a Option A contract. We have manufactured large items that are due to be delivered in the coming months. We were made aware during tender stage that there may be site issues that would delay delivery (we have no site work except to deliver), we agreed to offer a couple of months storage for free. It was written in to the contract that we would offer free storage. That site delay is now 2 years and we are being told we must cover the cost of storing these units for that time as we signed up to free storage. My question is what is the standing of the pre contract discussions? They were not written in to the contract which I know is a mistake on our part but do they have any standing with regard to the current situation?
In accordance with clause 12.4the contract is an entire agreement. This means that, unless for exceptional cases, any pre-contract discussions (or other documents) have been superseded by the contract and if not included cannot be relied upon.
Whilst you may have had the discussions, if the contract states that you would offer free storage that is what you have committed to. It would seem logical that the provisions of the signed contract supersede the discussions.
However, if you have an access date in the contract and the Employer has failed to provide access then you have a compensation event under 60.1(2). You may however be time barred from a change to the Prices if you did not notify the event in time (clause 61.3).
Similarly if you received an instruction to stop or not start any work you would have a compensation event under 60.1(4). That event would not be time barred.
The above is based on the standard clause so you need to check a Z clauses – good luck!