NEC 3 Option A - Neither party operated CE procedure properly

If neither party to the contract have carried out their obligations with regards the compensation event procedure but there has been correspondence between them relating to works that would be defined as compensation events, how can this be resolved at the end of the project? Does the Contractor have no right to claim any time and money even if he may suffer substantial losses?

It would depend on what the compensation event was for, which determines whether it is the Contractor or Project Manager who should have notified the matter as a compensation event.

If the Contractor, then the ‘time bar’ issue would apply under clause 61.3. If the PM then it is still a CE even though it has not been notified. Although the Contractor should have then notified the matter, the ‘time bar’ provisions do not apply. The situation effectively remains ‘dormant’ until either the PM or Contractor notify the matter and commence the procedure under core clause 6 for instructing quotations etc.

The rights from a compensation event are detailed under clause 63.4, so the situation you describe highlights the importance of administering the contract as intended (clause 10.1) so that you protect your commercial interests under the conditions of contract.

Just to add to Andrew’s comments, if the Contractor was required to have notified of the event (but didn’t within the prescribed time period) the matter is still a compensation event but the Contractor has forgone its entitlement to a change in the Prices and/or Completion Date.