We are a client using the NEC3 Engineering and Construction Contract (ECC) Option B (priced contract with bill of quantities). We would like to clarify if under the following circumstances we can recover some of our money. The completion certificate stated that the whole of the works were complete and a payment certificate and payment followed shortly afterwards. We are agreeing the final account currently but it appears to be for an amount less than that certified and paid. Are we able to recover the difference?
The contractor is paid the amount due – see clauses 50.2, 51.1 and 51.2. If the amount due reduces, presumably because of some wrongly assessed amount, the project manager can and should correct the amount due – see clause 50.5. If that reduces the amount due then the third sentence of clause 51.1 requires the contractor to make a payment for the difference to the employer. Therefore, in answer to your question, you are able to retrieve this overpayment from the contractor.
In addition, the contractor is required to pay interest on the amount he has been overpaid, in exactly the same way as you are required to pay such interest on any underpayment – see clause 51.3.
What should happen is that your project manager makes an assessment based upon the agreed amount and issues a certificate requiring the contractor to pay the difference to you under clause 51.1. The contractor then pays you the certified amount in accordance with the timescales set out in clause 51.2. If the contractor is late in paying, then interest will accrue on that payment, again see clause 51.2.