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NEC3 ECSC 2005 - What can be done if Contractor fails to submit a quotation within the time allowed

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The  Contractor on an ECSC (2005 version) contract has failed to submit quotations for several compensation events (instructed (not proposed) changes to the works information) that reduce the scope of works.

The 2005 version of ECSC does not include the clause allowing the Employer to assess the compensation event in such circumstances. So what can I do to address this situation?

I've considered two things so far:
1 - Cancel the instruction and change it to a proposed instruction, then due process would allow me to assess the CE, but this introduces an unacceptable delay;
2 - Await the Contractor's application for payment, then notify him that it has been wrongly assessed and pay him a lesser amount.

Would either of these be acceptable? Any other advice?
asked Feb 23, 2018 in Compensation Events by SL58 (350 points)  

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I have not got the 2005 version to hand, but I don't remember it being significantly different in anyway to the 2013 version. Section 62 and 63 deals with assessing compensation events and unless elements of it have been deleted with a Z clause 62.3 states that the Employer assesses the compensation event if the Contractor does not submit a compensation event within the timescales.

Bearing in mind it is now 2018, it does beg the question why you are not using the 2013 version of NEC3 or even more up to date going forward using NEC4 2017 version.
answered Feb 24, 2018 by Glenn Hide (70,150 points)  
selected Feb 26, 2018 by Glenn Hide
Unless there has been a Z clause to modify the core clauses, then the provision in the 2005 edition of NEC3 is in Clause 64.1 first bullet: The Project Manager assesses a compensation event if the Contractor has not submitted a quotation and details of his assessment within the time allowed.


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 The contract I'm looking at was awarded under a Framework Agreement entered into prior to the 2013 edition of NEC3. It's coming to the end of its life but for now I'm stuck with using the 2005 edition of the ECSC.

 Like you, I had also forgotten what changed between 2005 and 2013, but you will find that the Clause 62.3 that you refer to did not exist in 2005, ie the possibility of the Contractor not responding to a request for a quotation was not dealt with in 2005. The 2013 edition recognised that deficiency and included an appropriate clause, number 62.3.

 Hence my dilemma and my original request for advise on how to deal with this situation. Any further thoughts would be welcome.
I think you're looking at the ECC form whilst my query relates to the ECSC form.
I would just say you make your own fair assessment in accordance with the contract like every other NEC contract allows - what are they going to do? Crazy that simple loop was missing in 2005.
Sorry, I had missed the point about it being the short contract.  Having checked the 2005 short form, I think the answer is in Clause 62.4, the second sentence of which states "If the Employer does not agree with the revised quotation or if none is received, the Employer assesses the compensation event....."  While this could be construed as relating only to a revised quotation, I think the words "if none is received" could also apply to no quotation whatsoever being received.