I have just started work with a new Employer and inherited a few jobs from my predecessor. One of them has got me totally puzzled.
It expressly states the contract is NEC3 Option A but also states that it is also remeasurable!!. There is no Activity Schedule as such, although the subcontract data does reference an Activity Schedule which contains 20 odd items. However, this is more of a BQ since it contains quants, units, rates and the total of each item. The document is headed Tender Sum Analysis.
What’s more confusing are the Pre-Order Meeting Minutes which are incorporated as a contract document and which contain a section called Variations. These are more akin to JCT VO provisions but with the added headache of a priority clause which gives these provisions precedence over any other ‘Variation Provisions’ in the Subcontract. How can NEC3 work if the compensation event process is trumped by provisions that appear to have been lifted from a JCT contract?
Finally, throughout the course of the contract, both parties have been remeasuring the works and payments have been made accordingly. The contract had already begun to turn smelly and I know it is going to end in tears…
Your opinions would be greatly appreciated
Q1 - What type of Contract is it? Option A or perhaps Option B by the conduct/ intention to remeasure it?
Q2 - Would an adjudicator throw out the variation provisions and stick with the CE procedure or would he try to mould them into some form of hybrid contract so that they coexist in the same contract?