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NEC ECC: Commence with additional works or not?
A compensation event has been notified & instructed for an additional 150m of kerbs. Quotations have been submitted for 4 weeks at present.
The kerbs are already on the accepted programme as an event which is going to happen but... a quotation has not been accepted and therefore the works have not started as per programme. Is the Contractor right to delay the kerb laying?
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It comes down to under which clause the quotation was requested under. If it was under clause 61.2 (or 65.1 for NEC4) then this is just for a proposed quotation and you should not proceed in the meantime until there is a response and a subsequent instruction if the Project Manager wishes to proceed.
If there has been a clear instruction to install the kerbs, and the quotation requested under clause 61.1 then the Contractor should be proceeding with the installation without waiting for the quote to be agreed, and run the risk of delay damages if they have not proceeded and end up exceeding the Completion Date.
It should have been clear when the quote was instructed whether in the meantime the Contractor should have proceeded, and if the Contractor was in any doubt they should have clarified.
If the Parties had been using an online administration tool such as FastDraft for the flow of NEC communications then this could not have happened, as the form would have forced the PM to make it clear whether the quote was being requested under 61.1 or 61.2 before it was issued to the Contractor
Just to note that, strictly speaking, an instruction should have been issued (and probably has been, but not explicitly) under Clause 14.3 that changes the Works Information (or Scope under NEC4, the clause number is the same under NEC3 and NEC4).
Once the WI/Scope has been changed, then under 20.1 the Contractor is required to Provide the Works in accordance with the WI/Scope, irrespective of what happens under the Compensation Event process with regard to quotations, revised quotations, assessments and implementation.
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