Does the Contractor / Consultant have to apply for interest or is it the obligation of the Service Manager/ project Manager to assess?
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The leading case of Costain v Bectel established that the project manager in the ECC must act impartially in assessing amounts due and certifying payments. The duty to assess falls to the project manager and this must be carried out in accordance with the contract regardless as to how much the contractor has applied for. Therefore the project manager’s assessment may be more or less than what the contractor applied for. In terms of assessing any amounts for interest the project manager is not afforded any discretion in whether to do it or not and the client does not have any discretion over whether to pay it or not. When reading clause 51 of the ECC it contains an obligation on the client to pay interest and an obligation on the project manager to include it in assessments of the amount due.
Whilst my comments are specific to the ECC in terms of the role of the project manager, I think it a reasonable assumption to make that they would equally apply to the roles of the service manager in PSC and TSC.
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