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NEC ECC: 62.5 Extending the time allowed

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With regards to core clause 62.5, The Project Manager extends time allowed for, (1) The Contractor to submit quotations for a Compensation Event and ,(2) The Project Manager to Reply to a quotation.

NEC3 ECC states that if the Project Manager and the Contractor agree to the extension before the submission or the reply is due, the Project Manager notifies the Contractor of the agreed extension.

In light of the above, say the Project Manager has provided our Contractor multiple extensions for his own assessment / reply of the Compensation Event, not agreed this with the Contractor, what remedies under ECC would the Contractor have as I assume this does not fall into notifying a failure to respond within the stipulated time scale.

For simplicity or in other words, could the Project Manager infinitely grant his own extensions and if not what is the consequence?
asked Jul 2 in Compensation Events by Alfie David (260 points)  

1 Answer

+1 vote
The PM should be confirming the agreement made between the PM and the C not a unilateral "agreement" made by himself/herself.

I suggest that the C replies highlighting that it has not agreed to the extension and referencing 64.4 in that the PM has not reply within the time allowed (first notification)
answered Jul 2 by dave bates Panel Members (13,650 points)  
Thank you, Dave.

Would this scenario be in breach of the Contract terms?

Also, would this constitute as a Notification of Compensation Event from the Contractor for prolongation costs incurred with the delay to the response ie Third tier subcontractors on standby awaiting decisions whilst on the critical path?
Alfie

sorry but I'm not clear what your comment is. I would not consider it a breach. If the issue has been notified as a CE by the PM and you have submitted a quotation then you should just write to confirm you have not received a response in the required time period
Just to clarify a couple of points here. The only reason the PM's failure to make an assessment would cause delay etc is if the CE was in relation to a proposed instruction, all other CEs are a function of the work you already have an obligation to complete. As Dave suggests, reminding the PM with a clause 64.4 notification is your remedy for the PM's breach i.e. failure to reply in time. This reminder gives the PM a further 2 weeks to reply, after which the CE quotation is deemed accepted. If the PM's failure has led to further delays and costs that were not considered in your quotation, you could notify this as another CE under clause 60.1(6) but, if accepted, you would need to prove that the delays and costs flowed from the PM's breach and not your own failure e.g. failing to progress the works.