The quoted values regarding instructed works (CEs) and NCEs were paid by the contractor in full for the last three/four consecutive months and as such I marked these CEs/NCEs as agreed in terms of the quoted costs. However, lately the contractor reduced their assessment regarding these CE/NCEs, claiming they have never been formally agreed, even though their assessments in each application for payment was not marked as ‘On account’. Can the contractor do that if previously paid in full without any remarks?
In addition, some of the payments for the instructed works have been withdrawn and I was advised that these works are part of the subcontractor’s WI. Can the contractor withdraw previous payment/assessment for the event they have officially issued an instruction and requested the quotation for, which has been paid in full via interim application for payments?
Hi Anna,
I assume you are referring to NEC3 ECS (Subcontract), in which you are with the Subcontractor. My comments below are on the basis of the unamended form.
Regarding your first question, unfortunately the mere payment of the quoted sum for a CEs does not amount to an acceptance of the quotation; you would have to look at the 3 bullet points of clause 65.1, and in your case it is most likely that the first applies, i.e. the Contractor should have notified his acceptance of the quotation for the CEs to be implemented. If of course you have any evidence or correspondence confirming such acceptance, the story changes.
If I understand correctly, in your second query you say that the Contractor instructed works - from which I infer that you had a relevant CE notification by the Contractor within that instruction or a CE notification by the Subcontractor & acceptance by the Contractor - which they initially paid for but not any more. What is important here is that if the CE has been accepted (as per the last remark) there must be a quotation submission and response (see clauses 62.1 to 62.6); the Contractor cannot change its mind and pretend that a CE does not exist, even if it made a mistake by accepting it. Again, previous payment of the quotation does not automatically prove acceptance thereof.
I’m sure there is much more detail and context in the situation you described, but the above should provide some initial direction. The conduct of the parties and any representations - e.g. maybe there is evidence that by paying the CEs, the Contractor led the Subcontractor to believe that it was accepting them - will weight in, if things escalate; hopefully, you will be able to resolve them before that.