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NEC ECS subcontract 2013 Option A - Clause amendments to 61.4, 64.4 & 65.1
I have a Main Contractor imposing the following clause amendments on me which i believe are unfair and leave the subcontract without a remedy. I have requested it to be reverted back to the original NEC intent however i am being met with 'not negotiable' ' you should price the risk''it's back to back with the Main Contract'
Am i right to be concerned with signing up to these clause amendments? I am being stonewalled by the MC but my business don't want to walk away from these works.
Clause 61.4 Notifying Compensation Events
In the second last line, delete the words “acceptance”. Insert the word “non-acceptance” and delete “and an instruction to submit quotations”
The contractor notifies his decision to the Subcontractor and, if his decision is that the prices, the subcontract completion date or the Key dates are to be changed, instructs him to submit quotations before the end of either
• Two weeks after the subcontractors notification or
• A longer period to which the subcontractor had agreed.
If the contractor does not notify his decision, the subcontractor may notify the contractor of his failure. A failure by the contractor to reply within three weeks of this notification it treated as ‘non-acceptance’ by the contractor that the event is a compensation event.
Clause 64.4 Contractors Assessment
64.4 Delete the last sentence
If the contractor does not assess a compensation event within the time allowed, the subcontractor may notify the contractor of his failure. If the subcontractor submitted more than one quotation for the compensation event, he states in his notification which quotation he proposes is to be accepted. DELETE THE FOLLOWING WORDS If the contractor does not reply within three weeks of this notification the notification is treated as acceptance of the subcontractor’s quotation by the contractor.
Clause 65.1 Implementing Compensation Events
65.1 Delete the third bullet point
A compensation event is implemented when
• The Contractor notifies his acceptance of the Subcontractor’s quotation
• The contractor notifies the subcontractor of his own assessment or
• DELETE THE FOLLOWING WORDS - A subcontractors quotation is treated as having been accepted by the contractor
I'm surprised they haven't deleted clause 10.1 as well !
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You are absolutely right in trying to resist this amendment from your Contractor. To take away the mechanism for you to be able to do something if they do not follow the CE process is very poor. The fact they signed up to that rubbish (sorry - I mean that amendment) does not make it right that they just pass it straight down the line to you the Subcontractor.
No Contractor, or Client for that matter should need to take away the deemed acceptance elements. They have to be reminded they have not responded and then get a further two weeks(ECC) or three weeks(ECS) to still not do what they should before it ever becomes deemed accepted. That is plenty long enough and not something they should be afraid of.
My advise is to challenge that at tender stage - and if they are adamant they have to stay in or you will not be considered then you have a decision to make. Price the risk or stand by your principles and walk away or just sign up anyway and hope it never becomes a problem. Just a real shame you are put in that position in the first place.
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The amendments are removing the provision for a compensation event, the assessment of the compensation event and its implementation to default to agreed due to the Contractor not responding to the notification and/or the quotation. The normal CE process would still operate (please check other Z clauses) but without the Subcontractor being able to time-bar the Contractor.
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