EoT & Additional Cost pursuant to NEC4 Option B
1.If the Client failed to to provide the Contractor with access to the works.
2. The Contractor issued to the PM several Early warning notifications.
3.On 7 Nov 2020 Client provided the Contractor with revised milestone dates indicating on which the Contractor would receive access to the remaining portion of the works.
4.Contractor on 10 Nov 2020 issued to the PM ,CE notification informing that the revised dates differ from the dates on baseline programme & causing a delay to the completion of the works and results in the Contractor incurring additional costs.
5. On 27 Nov 2020 Contractor notfied that PM had not yet responded.
6. On 10 Jan 2021 Contractor informed the PM that Contractor,s CE notification in terms of 60.1(2) 60.1(3) & 60.1(5) is now treated as accepted and an instruction for Contractor to submit a quotation.
7. On 16 Jan 2021, Contractor submitted is quotation for additional compensation amounting XXX and an EOT upto 11 Aug 2021.
8 On 9 Feb 2021 , PM responded to Contractor’s quotation instructing to submit a revised quotation that the Contractor did not include supporting documents and evidence of the amounts claimed.
9. On 15 Feb 2021,Contractor responded that the costs claimed are forecast costs pursuant to clause 63.1,confirming that the amounts are correct and no documents can be provided.
10. As a result on 20 Mar 2021, PM informed the Contractor that since the Contractor was unable to provide supporting documents, he now acessess the Contractor quotation as zero amount.
11. Client stated that the Contractor was unable to provide Client instruction where dates had changed ,nor provide evidence for additional costs ,claimed for inflation where option X1 is excluded and cannot introduce option X5 without mutual agreement.
12. On 3 Apr 2022 , the Contractor also mentioned that the PM did not respond within the contractual time period and quotation is treated as having accepted under clause 63.3 and 62.6 i.e. 19 Mar 2021 on which Contractor informed the PM still need to respond to the contractor’s Quotation.
What are the necessary steps to be taken according to the above circumstances by the parties?
A long winded answer, to say that you need to consider taking the matter to adjudication.
What you have not commented on is what event you are referencing as a compensation event. I have assumed that the primary event is 60.1(2), the Client not allowing access etc.
You also don’t say when the event happened, the date access should have been allowed but was not given. These needs checking against the provisions of 60.1(2).
The CE notification of the 10 November 2020 – was this to advise that the revised dates were a change to the Scope (new dates if previous dates within the Scope or an additional constraint if not).
You have followed the protocol in terms of notifying the PM of its non response to your notifications. You have set out that you advised of the non response on the 27th November. In accordance with the standard contract, the event would become a CE (by default) on the 11th December. You say you informed the PM on the 10th January, is this because the standard 2 weeks has been amended. If not the quotation was required by 4th January (if you are in UK) 3 weeks after default.
That said, the PM’s communication of the 9th February is implied acceptance that there is a CE and you have submitted a quotation. There appears to be an anomaly in the period between you submitting a revised quotation (albeit the same) and the PM making its own assessment (standard would be a response from the PM by 1st March) which may be due to contract amendments.
Given the situation you are in, you should advise the PM that you do not consider its assessment to comply with the contract (the amount of detail to include is for you to decide).
You need to fully consider the options to progress the matter which if the Client is not prepared to discuss will be adjudication.
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1.It is clear that the Based on revised milestone dates provided by client will extend the original completion date to 12 Aug 21 as accepted by PM and asking for quotation .
2.However the Cost assessment was not done by PM due to delay in Extension of Time ,Inflation etc in case Contractor was not provided the necessary documents and evidence which is olso the PM’s obligation.
Then assessment of cost is the dispute to takeup the matter to the adjudication .
What is your opinion
Yes, the PM needs to do its assessment in accordance with the contract which it has not done.
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Sir any model adjudication decision is available pertaining to EOT and prolongation Cost then will better for me ( FIDIC or NEC or JCT). I have to study kindly email sir biplabkantisom@rediffmail.com thereby oblige to you.
Rgds
Hi the dispute process will depend on the law of the contract stated in the Contract Data
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The issue pertaining to dispute is only EOt and prolongation cost as only one dispute ,inaccess to site can be resolved by adjudicator.
In adjudication what are the jurisdictional and principles of natural justice criteria are required to be checked
The Adjudicator does not have jurisdiction to order the Client to pay an amount which is not assessed nor properly due under clause 50 .
Whether it is right, or whether I will assessing sums that are properly due as per jurisdictional issue.
The revised milestone dates cannot be construed as a compensation event. Only events which constitutes compensation events can be considered for assessment as per rejoinder comments
Can the changes to the milestones/ accepted programme be a compensation under 60.1(.2)(.3) or (5).