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NEC ECC: When is the contents of an Early Warning Notification (16.1) and/Quotation(as requested by the PM, but not responded to) deemed accepted?

+1 vote
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I have received an early warning from my contractor, which I never responded to since the issue was, I believe, addressed in our morning Construction Meetings. A week later I received a notification that the Early Warning Notification is "deemed accepted". To my surprise, there never was a notification of a CE re the EWN.

Is it legit/contractual for the contractor to conclude that the risk as stated in the EWN is deemed to have been acknowledged, without even notifying a comp event? Which clauses will entitle him to ledge onto this conclusion?

60.1(6) says if the PM or the Supervisor does not reply to a communication from the Contractor within the period of reply by this contract; then this may result in a CE. However, a CE shall be notified in terms of 61.3, which the Contractor didn't do. Further more, the Contractor didn't adhere to 64.4, which requires the Contractor to notify the PM of his non-response, and "propose it to be accepted". I therefore concluded that there is no entitlement. Am I wrong? Apologies for the long essay.

Regards
MB
asked May 19 in Compensation Events by MlunghisiB6983 (210 points)  

1 Answer

+2 votes
 
Best answer
They have confused two processes here. Under NEC3, there are only three deemed acceptances in the whole contract and they are all to do with compensation events. If an early warning has been notified, it is added to the Risk register by the Project Manager and either discussed at a bespoke risk reduction meeting or the next risk reduction meeting if one has been scheduled.  Early warnings are for things that might or could be an issue and the idea is you discuss it to minimise or avoid its potential impact.

If this matter IS now a problem and a reason under 60.1 for being one, they should notify (separately) that this matter is a compensation event. That requires a response within a week from the PM. If there is no response, the Contractor can notify that there has been no response, and it there is not further response after another two weeks it is deemed accepted. There is a similar deemed acceptance loop is there is no response to a quotation, or if the PM said they would assess themselves but then did not.
answered May 19 by Glenn Hide Panel Member (78,050 points)  
selected Aug 13 by MlunghisiB6983