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NEC PSC: 8 Week Time Bar under clause 61.3
I have a question regarding clause 61.3 about notification to the Employer and the time bar of 8 weeks.
According to the clause, the Consultant notifies the Employer of an event which has happened or which he expects to happen as a compensation event if a) the Consultant believes that an event is a compensation event and; b) the Employer has not notified the event to the Consultant
In my practice, we received EI (Employer's instruction) without mentioning it as a CE.
But, we sometimes recognize that it should be a CE. In this case - to raise a CNCE, is the 8 weeks time bar applicable? (can't we consider the EI as an Employer's notification - as per the requirement of 2nd bullet point of the clause?)
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For events which the Employer is obliged to notify the compensation event, the Consultant is not time-barred. The time bar only comes into play for the compensation events within 60.1 for the Consultant is obliged to notify.
Where an instruction is a change to the Scope, generally this would be a CE under 60.1(1) and the Employer is obliged to notify. However, the Employer may think that this will not have an effect on the Consultants costs. Therefore the Consultant under 61.3 can notify why that instruction is a compensation event as it will lead to increased costs or Completion.
The instruction itself is not notification of a compensation event unless the instruction expressly states that. You can not take the instruction itself as a notification that they agree it is a CE, and therefore should notify yourself as the Consultant under 61.3. They then have to respond within one week whether they agree that it is a compensation event and then request a quotation. Much more efficient if the Employer does that all at the same time when clearly it is a CE, i.e. at the time of giving the instruction stating that it is a compensation event, and also requesting a quotation.
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