NEC 3 Opt A: Is there a contractual obligation to respond to an Early Warning?

NEC3 and NEC4 Contracts
1

This is several questions rolled into one:

  1. Is there a contractual obligation to respond to an Early Warning?
    1a. Is there a timeframe in which this should be done?
  2. Is there a contractual obligation on either party to close out an Early Warning?
    2a. Is there a timeframe in which this should be done?

I am familiar with the project management tool CEMAR which stipulates a ‘reply due by’ date when an Early Warning is notified. I have recently started using a new piece of software which has no timescale associated to a reply (no ‘reply due by’ date). I raised this as question and was told that there is no contractual obligation in regard to responding to and/or closing out an EWN. Having briefly read the contract, there does not appear to be a set timeframe in which to respond or an obligation to do so, it simply describes how the risk management process should work. The only point on timing is that an EWN should be notified as soon as either party becomes aware of any matter which affect cost, time and/or quality.

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In accordance with clause 13.3, if a reply to a communication is required that should be given within the period for reply (set out in CD Part 1).

Regarding the early warning, you have correctly noted (subject to any amendments in your contract) that there is no stipulation for responses’ timeframes. That is because, in my view, the purpose of the early warning is accomplished after notification or after the risk reduction meeting, if instructed; i.e. the matter in question is entered into the Risk Register by the PM, and if necessary discussed in detail within the risk reduction meeting, whereby the proposals, solutions, actions etc. should be agreed.

So, in principle and subject to contract specifics, I would agree that there is no contractual obligation for a response. As for “closing out”, I would suggest that it is an action equivalent to removing the risk from the Risk Register, if the risk has been avoided or passed (see clause 16.3, 4th bullet point).

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