Hi Neil, it has been a while since this post but I think it is still relevant. I was clear in my response that notifications must be sent separately and that there may be a case to answer here in that the CE was not notified separately however, the contract does not require instructions to be communicated separately as you state in your post. It is wrong to say all three communications should be issued independently, nothing prevents the two instructions from being given in one communication.
It’s not clear from Kieran’s post if the Contractor is ignoring the 14.3 instruction or not but he seems to be referring only to the instruction to submit quotations, if that’s the case why comply with one and not the other?
Clause 61.1 states that the PM instructs the Contractor to submit a quotation unless one has already been submitted, this statement suggests that an instruction may have already been given to submit a quotation prior to the PM’s notification of the CE. It certainly doesn’t expressly prevent that from being the case.
On this basis I cannot see any successful way to argue that the proper notification of the event by the PM is a condition precedent to either, instructing a quotation or indeed obeying such an instruction.
I have made it clear that the PM is in breach by not complying with clause 13.7 and therefore also clause 10.1, nor do I condone ignoring clause 13.7 but, I believe the Contractor is also in breach of clause 10.1 and playing a very dangerous game. It seems clear that the PM has attempted to act in the spirit of mutual trust by communicating what is supposed to be communicated, albeit not in accordance with clause 13.7, but can the same be said for the Contractor’s behaviour?
It is clear to me that the PM has instructed a change to the WI, notified the CE and instructed a quotation, my advice to any Contractor’s in similar circumstances is, do not play games on notices under clause 13.7, I would not feel as confident as you Neil in arguing the Contractor’s case.
As a footnote, I also suggest that everyone looks at clauses 61.4 and 61.2 of the NEC4 ECC which now requires the PM to, include an instruction to submit quotations in the notification of the event, a slight relaxation of the 13.7 rule. As Kieran alluded to, 13.7 is a communication protocol to stimulate good management it doesn’t expressly state that failure to notify separately nullifies the notification. Clause 27.3 on the other hand is clear that the Contractor obeys an instruction which is in accordance with the contract and given by the PM. Kieran’s instruction was in writing and given in accordance with clause 61.1 of the contract, therefore I believe it should be obeyed. Happy to debate further.