Nec 4 option a subcontract ce 60.1(1) vs amended 61.3

We raised a cen against 60.1(1) due to change in works information - Client specified a drainage material that was different to contract drgs which increased cost. Never received formal or informal instruction, but agreed informally in discussions at progress meeting (no notes in meeting minutes other than comments of material approved)

We have an amended clause 61.3 deleting the wording in absence of pm instruction subcontractor can raise ce. Wording remains around 20 days to notify.

I don’t have nec4 guidance notes or much experience of nec4 but always under impression 60.1(1) wasn’t time barred.

Client believes because we never notified a CEN within 20 days and the omission pm instruction wording within 61.3 we’re not entitled to cost.

Any advice? Other clauses to check wording?

Without seeing the contract amendments it is difficult to give a clear answer however it appears that the change is a result of the Client (I presume you mean Project Manager) changing the Scope.

You are required to provide the works in accordance with the Scope (clause 20.1). Therefore if the PM (on behalf of the Client) wants a different material to that within the Scope it must give an instruction under clause 14.3 and as you say that becomes a compensation event under clause 60.1(1). The PM in compliance with the contract is required to notify the CE under clause 61.1.

What is worrying is that you also say you have not received an instruction, in which case you should not be complying with the change (because there hasn’t been one) and the Client will not get what it wants.

It would seem that a sensible discussion should be held with the PM and the Client to get clear agreement of what is required, and if it is a change then the PM gives an instruction and notifies of a CE as it is required to do.

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pkeeley1984, whilst Dave’s advice is good advice it appears from what you’re saying that you are already in conflict with the Client over it as they are imposing the time bar. The worrying thing is the amendment you refer to. Your quoting mixed terminology, you refer to the Client and PM but also to subcontractor, is it the main ECC or the subcontract version ECS or the Short Contract? Either way I think what you’re saying is the wording in 61.3 which relieves the Contractor of the time bar and that states, “unless the event arises from the PM or Supervisor [Contractor ECS or Client ECSC] giving and instruction…” etc. has been deleted. If that is the case then the time bar applies to all CE’s including 60.1(1) and it should have been notified within the stated time period.
Dave is absolutely right when he says you should not act on a verbal instruction, clause 27.3 - only obey instructions given in accordance with the contract. If the work has been done and is obvious, i.e. it can still be seen, then it is technically a Defect under clause 11.2 (6) - something that is not in accordance with the Scope. Under clause 43.2 the Contractor can notify a Defect, I suggest you do this immediately. Under clause 44.1 the Contractor is obliged to correct all notified Defects, I suggest you do this immediately and return the works to what is described in the Scope. That will solve yours and the Clients problem. In future only act as stated in the contract - clause 10.1 and make others do the same, it’s what they’ve signed up to do. Good luck.

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