Our client wants to amend 61.4, 62.6 & 64.4 so if they do not respond to CE notifications, quotations or provide assessments it is deemed to be non acceptance rather than acceptance.
Is this normal?
I would rather this stayed unamended obviously but was hoping for some guidance on how to respond.
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I wouldn’t say it’s normal at all, in fact I’m not sure I’ve heard of this before. NEC contracts are predicated on (amongst other things) good project management, this sort of amendment is anything but this. Deemed acceptance can only happen firstly when the PM has not replied and should have, and secondly when the Contractor “reminds” the PM that they haven’t replied. This already gives the PM two chances to do their job right! Why on earth should they want the default position to be “reject” when the PM is in breach of contract for not replying in the first instance? They clearly have no confidence in their PM to do what it says in the contract. Do they realise that if they make this amendment all that will happen is that the Contractor will notify the CE for a second time, and a third time and a fourth etc until eventually the PM will surely have to deal with it? It’s a very onerous amendment that sends out a strong message to their supply chain that they won’t be entitled to any CEs no matter what they do as the PM can effectively just ignore them and get away with it scot-free! I’d advise any contracting clients of mine not to enter into this contract at all.
Maybe your Client doesn’t understand how deemed acceptance works in the unamended contract? It doesn’t happen automatically with merely the passage of time, it has to be triggered by the Contractor by issuing of a notification to “remind” the PM that they haven’t replied. Pulling the trigger gives the PM another two weeks to do what they were required to do! Please don’t amend the contract to suit ineffective PMs who don’t want to deal with things. Why should this be a risk parked at the Contractor’s door? Tell them to manage their flipping PMs!!!
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Neil, I couldn’t agree more. If I had been engaged to project manage the contract, as PM, my first thought would be the client doesn’t trust me. As you say, the contractor will just continue to be asking for the same CE, repeatedly.
I would certainly advise a contractor not to sign up to such an amended contract, an unamended contract is fair and has plenty of case law to fall back on.
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