The Project Manager gives an instruction to stop or not to start any work or to
change a Key Date.
In the initial instruction cl 61.2 was included (The Project Manager includes in the notification of a compensation event an instruction to the Contractor to submit quotations unless).
The PM has issued instruct under 34.1- re-start or start the work or
The CEQ hasn’t been implemented.
Does the PM have the power to instruct a re-start prior to implementing the compensation event. If so what risks do this put onto the contractor?
This is a particular situation where the PM should have stated an assumption for the period of time that the initial instruction given under clause 34.1 relates to. Where this is not the case then the ‘scope’ of the instruction remains ‘open ended’.
The PM could instruct the submission of a revised quotation and state assumptions, although as clause 62.4 refers to ‘quotation’ (singular) and clauses 61.4 and 61.6 refer to ‘quotations’ (plural), it is not clear if this applies, notwithstanding clause 12.1 (singular and plural).
The PM has the authority to issue instructions in accordance with the contract. There is nothing to stop them, for example, instructing several consecutive instructions changing the same part of the Scope, irrespective of the ‘status’ of these instructions within the compensation event procedure, although not an ideal situation in practice
So, in conclusion, the PM hasn’t made assumptions within the instruction of when the contractor will restart works. However, verbal communication has been made and the contractor has stated within its CEQ that this is based on the verbal instruction by the PM (albeit it should be the PM stating this) we live in the real world where the PM instructions are poorly drafted for most. But, the PM can instruct the restart even without the CEQ and its assumptions being implemented, leaving the Contractor in a risk position. Any suggestions how to mitigate or reduce this risk other than getting the PM to be clear in a new instruction stating it’s assumptions?
As you have highlighted it is very common for the actual scope of work relating to a CE to not be clearly defined, which makes a quotation assessment ‘challenging’.
You could discuss this matter with the PM and ask that they confirm the ‘verbal instruction’ as a formal communication, referencing the instruction to stop work. If one of the bulleted ‘effects’ applies then you could notify this as an early warning ‘matter’ for discussion at an early warning meeting. At least that way there would be a formal record on the Early Warning Register, should the matter be disputed.
Hi KD191 just picking up on this question. Yes the PM can issue an instruction to restart before implementing before implementing the original CE. the assessment/implementation of the CE happens independently of the instructions and your obligation to complete the works. The new instructions to restart the works would be a compensation event under clause 60.1(8) under NEC4 ECC i.e. they change a decision previously made. i would be very wary of acting on verbally instructions, as your obligations will hang off of what is instructed in writing or in the Scope or terms and conditions. You are unlikely to be able to recover costs incurred from acting on a verbal instructions and also it may also discourage the PM from issuing the written instruction if you start again based on a verbal instruction. Hope this helps.