Q&As

How can a consultant seek compensation under an NEC3 Professional Services Contract 2013 for additional costs incurred as a result of a survey provided by an employer that was discovered to be incorrect after the works had been completed?

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Published on LexisPSL on 05/07/2016

The following Construction Q&A provides comprehensive and up to date legal information covering:

  • How can a consultant seek compensation under an NEC3 Professional Services Contract 2013 for additional costs incurred as a result of a survey provided by an employer that was discovered to be incorrect after the works had been completed?
  • Clause 60.1(1)—the Employer gives an instruction changing the Scope
  • Clause 60.1(10)—a breach of contract by the Employer
  • Clause 60.1(12)—the Consultant corrects a Defect for which he is not liable under this contract

How can a consultant seek compensation under an NEC3 Professional Services Contract 2013 for additional costs incurred as a result of a survey provided by an employer that was discovered to be incorrect after the works had been completed?

The starting point would be to consider the status of the survey and whether it forms part of the Scope. In the NEC3 Professional Services Contract 2013 (PSC), the consultant's services are set out in the Scope. This is the equivalent of the Works Information in NEC3 ECC and a combination of the Employer’s Requirements and Contractor’s Proposals in JCT contracts. The definition of the Scope is set out in clause 11.2(11) of the PSC.

If the survey does not form part of the Scope, then clause 12.4 (entire agreement clause) applies and there is unlikely to be any recourse under the compensation clauses because the survey does not form part of the contract. In this case, it will be necessary to rely upon potential claims in tort such as misrepresentation or negligent misstatement—see for example Actionable misrepresentation and negligent misstatement—overview and the commentary Negligent misstatement: Emden's Construction Law.

The law of negligent misstatement provides that, where a professional adviser supplies information to tendering parties, if the adviser knows that the information is likely to be used for the purposes of preparing the tender, and the tendering

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